Record Extract

IN THECOURT OF APPEALS OF MARYLAND

____________________

September Term, 2005____________________

No. 143____________________

LINDA H. LAMONE, et al.,

Petitioners,

v.

MARIROSE JOAN CAPOZZI, et al.,

Respondents.

____________________

On Appeal from the Circuit Court for Anne Arundel County(Ronald A. Silkworth, Judge)

Pursuant to a Writ of Certiorari to the Court of Special Appeals

____________________

RECORD EXTRACT____________________

J. JOSEPH CURRAN, JR. M. ALBERT FIGINSKI, ESQ.Attorney General of Maryland Law Offices of Peter G. Angelos

One Charles CenterMARGARET ANN NOLAN 100 N. Charles Street, Suite 2200MICHAEL D. BERMAN Baltimore, Maryland 21201STEVEN M. SULLIVAN (410) 649-8820WILLIAM F. BROCKMANAssistant Attorneys General CHRISTOPHER R. WEST, ESQ200 St. Paul Place, 20th Floor Semmes, Bowen & SemmesBaltimore, Maryland 21202 250 W. Pratt Street, 16th Floor(410) 576-6345 Baltimore, Maryland 21201

(410) 576-4772KATHRYN M. ROWEAssistant Attorney General Attorneys for Respondents90 State Circle, Room 104Annapolis, Maryland 21401(410) 946-5600

Attorneys for Petitioners

i

TABLE OF CONTENTSPages

Docket Entries, Case No. 02-C-06-115807, Circuit Court for Anne Arundel County . 1-8

Plaintiffs’ Complaint, with Exhibits A-L . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9-86

Plaintiffs’ Motion for Summary Judgment . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 87-89

Plaintiffs’ Motion for Temporary Restraining Order and Preliminary Injunction . . . 90-93

July 28, 2006 Order for Transfer of Venue . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 94-95

Defendants’ Memorandum in Opposition to Plaintiffs’ Motion for Temporary Restraining Order (page 1 only), with Supporting Affidavit . . . . . . . . . . . . 96-103

Defendants’ Motion to Dismiss Complaint . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 104-06

Defendants’ Motion for Extension of Time to Respond to Plaintiffs’ Motionfor Summary Judgment, with Rule 2-501(d) Affidavit and Exhibits A-C . . 107-35

Plaintiffs’ Trial Memorandum (page 1 only) . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 136-37

Proffer of Evidence . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 138-48

Notice of Service of Discovery . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 149

Affidavit of Lisa Lucas . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 150-52

Transcript of August 8, 2006 Hearing . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 153-279

August 11, 2006 Memorandum Opinion and Order . . . . . . . . . . . . . . . . . . . . . . . . 280-99

Order Granting Stay Pending Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 300

Notice of Appeal . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 301-02

Record ExtractPage 1































































































MARIROSE JOAN CAPOZZI, et al., * IN THE

Plaintiffs, * CIRCUIT COURT

v. * FOR

STATE OF MARYLAND, et al., * ANNE ARUNDEL COUNTY

Defendants. * CASE NO.: 02-C-06-115807

* * * * * * * * * * * * *

DEFENDANTS’ MEMORANDUM IN OPPOSITION

TO PLAINTIFFS’

MOTION FOR TEMPORARY RESTRAINING ORDER

Now come the defendants, the State of Maryland, the State Board of Elections, and

Linda H. Lamone, as State Administrator of Elections in her official capacity

(collectively, “SBE”), by J. Joseph Curran, Jr., Attorney General of Maryland, Michael D.

Berman, Deputy Chief of Civil Litigation, and, Kathryn M. Rowe, Assistant Attorney

General, their attorneys, and, in reply to plaintiffs’ motion for a temporary restraining

order, state as follows:

TABLE OF CONTENTS

I. SUMMARY OF ARGUMENT. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2

II. FACTS, DESCRIPTION OF STATUTES, AND LEGISLATIVE HISTORY. . . 5

III. DUE TO PLAINTIFFS’ INORDINATE DELAY IN COMMENCING THISACTION, COUPLED WITH THE RESULTING PREJUDICE TO VOTERS,EMPLOYERS, AND SBE THAT ACCRUED IN THE INTERIM, THEPLAINTIFFS’ CLAIMS ARE BARRED BY THE DOCTRINE OF LACHES. . 8

IV. A TEMPORARY RESTRAINING ORDER CAN BE ENTERED AGAINST ASTATE ENTITY ONLY IN LIMITED CIRCUMSTANCES. . . . . . . . . . . . . . . 17


Pages 2-56 of Defendants’ Memorandum in Opposition to Plaintiffs’

Motion for Temporary Restraining Order intentionally omitted in

accordance with Rule 8-501(c) (memorandum of law not to be included in

record extract unless it has independent legal significance).













v. * FOR



* * * * * * * * * * * * *

DEFENDANTS’ MOTION FOR EXTENSION OF TIMETO RESPOND TO

PLAINTIFFS’ MOTION FOR SUMMARY JUDGMENT

Now come the defendants, the State of Maryland, the State Board of Elections, and

Linda H. Lamone, as State Administrator of Elections in her official capacity (collectively,

“SBE”), by J. Joseph Curran, Jr., Attorney General of Maryland, and Michael D. Berman,

Deputy Chief of Civil Litigation, their attorneys, and, for a motion for extension of time to

respond to plaintiffs’ motion for summary judgment, state as follows:

1. Plaintiffs filed this action on July 17, 2006, challenging the early voting laws. SB

478 (2005 Session), Chapter 5, Laws of Maryland 2006, became law on February 16, 2006.

HB 1368 (2006 Session), Chapter 61, Laws of Maryland 2006, became law on April 10,

2006. Thus, Plaintiffs delayed five months in bringing this lawsuit.

2. Plaintiffs have requested a temporary restraining order and preliminary injunction.

Their request for a TRO will be heard on August 8, 2006. Defendants have filed their

opposition to that request. This Motion does not impact on the TRO proceeding.

3. Rule 2-501(d) provides that, if the Court is satisfied from the affidavit of a party

opposing a motion for summary judgment that the facts essential to justify the opposition


2

cannot be set forth for the reasons stated in the affidavit, the Court may deny the motion or

may order a continuance to permit discovery to be conducted, or may enter any other order

that justice requires.

4. The Rule 2-501(d) Affidavit of Ross Goldstein, Deputy Administrator of the

Maryland State Board of Elections, is attached to this motion. That affidavit demonstrates

that the facts essential to justify the opposition to plaintiffs’ summary judgment motion

cannot be set forth until after plaintiffs respond to defendants’ outstanding discovery

requests. Defendants’ timely interrogatories, request for production of documents, and

request for admission of facts and genuineness of documents are attached to the affidavit as

Exhibits A, B, and C.

5. Under the holding of Basiliko v. Royal National Bank of N.Y., 263 Md. 545, 547

(1971), where there are timely-filed, unanswered discovery requests for discoverable

information, a court should postpone consideration of a summary judgment motion until the

discovery is answered.

6. All of the defendants have moved to dismiss the case. See Defendants’ Motion to

Dismiss Complaint. The State of Maryland has, for example, asserted that the claims against

it are barred by sovereign immunity, a point conceded by plaintiffs in the Circuit Court for

Queen Anne’s County proceeding on a venue motion in this case. (The transcript has been

requested, but has not yet been transcribed.) The defendants should not be compelled to

respond to a summary judgment motion unless and until the plaintiffs survive the motion to


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dismiss. See, e.g., Md. Rule 2-321(c)(when a motion to dismiss is filed, it automatically

extends the time for filing an answer).

7. There is no need to expedite plaintiffs’ motion for summary judgment. Plaintiffs

have requested, and the Court will conduct, a hearing on plaintiffs’ motion for a temporary

restraining order on August 8, 2006. If plaintiffs are entitled to any expedited consideration,

they will receive it at that time.

8. Given the extreme delay by plaintiffs in bringing this action, they cannot colorably

demand expedited action. “[A] long delay in seeking relief indicates that speedy action is

not required.” Quince Orchard Valley Citizens’ Assoc., Inc. v. Hodel, 872 F.2d 75, 80 (4th

Cir. 1989)(where plaintiffs’ delay was six months, whatever “irreparable harm Plaintiffs face.

. . is very much the result of their own procrastination”). In short, equity demands that those

who challenge government actions do so “with haste and dispatch.” Id. Laches applies with

additional force in the electoral context because a party seeking to challenge an election has

an express duty to act promptly. As the Court of Appeals noted in a recent election case:

“Ross’s unjustified delay must be juxtaposed against his duty to petition for redress without

delay when the election approaches. . . .” Ross v. State Board of Elections, 387 Md. 649, 669

(2005)(emphasis added)(citation omitted). Plaintiffs breached their duty to petition without

delay and, therefore, should not be heard to assert that others must respond without delay,

when such an assertion prejudices the responding party.

9. There will be no prejudice to plaintiffs if this motion is granted. Defendants - - and

the citizens of Maryland - - will be prejudiced if this motion is denied.





























Pages 2-26 of Plaintiffs’ Trial Memorandum intentionally omitted in

accordance with Rule 8-501(c) (memorandum of law not to be included

in record extract unless it has independent legal significance).




v. * FOR



* * * * * * * * * * * * *

PROFFER OF EVIDENCE

Now come the defendants and proffer that they could offer evidence proving the

following facts. Plaintiffs assert that some or all of the following facts are irrelevant and the

parties agree that the plaintiffs’ objection is preserved for all purposes. Plaintiffs, however,

authorize the defendants to represent that plaintiffs agree that there is no need for the

defendants to offer proof of the following facts through witnesses or documents on August

8, 2006.

1. SB 478 (2005 Session), Chapter 5, Laws of Maryland 2006, became law on

February 16, 2006.

2. HB 1368 (2006 Session), Chapter 61, Laws of Maryland 2006, became law on

April 10, 2006.

3. SBE began implementing HB 1368 immediately on April 10, 2006. See Affidavit

of Ross Goldstein.

4. Plaintiffs filed suit on July 17, 2006.

5. The primary election is set for September 12,2006 and early voting for that election

is due to begin on September 5 and end on September 9. th


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6. The general election is set for November 9th and early voting for that election is

due to begin on October 31 and end on November 4.st

7. There are 3,088,984 active voters registered and 228,224 inactive voters

registered. Inactive voters are constitutionally permitted to vote. Gisriel v. Ocean City Bd.

of Supervisors of Elections, 345 Md. 477, 503 (1997), cert. denied, 522 U.S. 1053 (1998).

8. The Guidelines that govern early voting are attached to the affidavit of Ms. Joan

F. Beck and provide that the early ballots will not be tallied until the day specified in the

Constitution. When the early voting period is over, the election judges are to turn off the

voting machines in a way that does not produce a totals report. Guidelines 7.4A. The

memory cards are then to be transported to the local election office, where they are

inventoried to ensure that they are all there. Guidelines 7.4B and C. The votes may not be

tabulated, however, until 8 p.m., on election day, which is when tabulation begins on votes

cast that day. Guidelines 7.4D. The early voting results are to be combined and reported

with the election day results in the unofficial election day results. Guidelines 8.1A. After

verification, they are to be reported both separately and as a combined result. Guidelines

8.1B.

9. After April 10, 2006, SBE commenced voter outreach to explain to voters the

option of early voting. SBE has posted early voting information on its website, spoken to

groups about early voting, and has done several news interviews with local media to

publicize early voting. Subsequent to April 10, 2006, and prior to July 17, 2006, some voters

may have decided to rely on the Early Voting Laws in making their own plans for business


3

trips, vacations, child care, leave requests, family functions, etc., and these plans may be

disrupted if early voting is not available.

10. In addition to SBE, local boards of election have taken and are taking a number

of steps to educate voters and prepare for early voting. For example, Wicomico County has

run a public service announcement about early voting on the local cable access channel, hired

elections judges, and scheduled a training session. It has leased an early voting site. Harford

County has conducted outreach visits and informed persons requesting absentee ballots that

there is another option. It has given speeches at organizational meetings about early voting.

It is in the process of hiring election judges. Washington County has commenced voter

outreach and hiring election judges. Anne Arundel County has been speaking with voters

about early voting and is scheduled or has gone to Heron Point retirement community to

discuss this topic. It has conducted poll worker training and set up schedules for workers on

early voting. Montgomery County will send a mass mailing to voters between August 4 and

7. Montgomery County has leased early voting sites in county buildings and has expended

approximately $72,100. Frederick County is beginning its outreach program. It, like others,

has a link on its web site to SBE’s early voting web site. Training of election judges for early

voting began this week in Frederick County. Other local boards have also acted to implement

early voting.

11. In the event of a restraining or other injunctive order, SBE believes it must

attempt to tell everyone who planned to vote between September 5 and September 9, and/or

October 31 through November 4, that they cannot do so. That process creates a real risk of


4

voter confusion and error. There is, and can be, no guarantee that this will be accomplished,

despite SBE’s best efforts to comply with any Court order. Nor can there be any assurance

that voters will be able to rearrange their schedules.

12. If SBE’s efforts to contact 3.3 million or more people in approximately one month

(the period from the date of any equitable relief until September 4, 2006) are unsuccessful,

a voter unable to vote on election day who relied on the early voting statute may lose his or

her right to vote, other than through an absentee ballot.

13. SBE has approved early voting sites selected by local boards, purchased

electronic poll books, created training materials, developed guidelines and a regulation, and

developed procedures for loading ballot styles onto early voting units. See Affidavit of Ross

Goldstein. Public funds were expended before the plaintiffs filed suit. For example, and not

by way of limitation, election judges’ manuals have been created and some voting sites have

been networked. Public resources have also been used for training of election personnel for

early voting. See id. Some of these resources will have been wasted if a TRO is entered.

Additionally, during the period prior to filing of this lawsuit, SBE commenced a program of

voter outreach regarding early voting. See id.

14. SBE personnel are heavily committed to preparing for a primary election that is

less than five weeks away. See Affidavit of Ross Goldstein. SBE personnel are currently

engaged in: ballot definition, design, and certification; early voting preparation, including

implementation of electronic poll books and development of training materials; preparation

to conduct parallel testing of voting machines; oversight of voter registration activity;


5

oversight of the implementation of a new Statewide uniform voter registration system,

including serving as a resource for local users, addressing implementation issues, and general

project management; spending 100 hours in discovery pursuant to Court order in the

electronic voting lawsuit; responding to requests for information from candidates, the press,

voters, and the public; supporting local boards of election in similar activities; continuing the

development of uniform procedures, guidelines, regulations, and forms; certifying ballot

questions; coordinating the mandatory reprint of the Election Law article of the Code;

reviewing and approving election judge’s manuals; compiling and procuring items to make

polling places accessible for election days; monitoring vote outreach activities; evaluating

election judge’s training; responding to the U.S. Election Assistance Commission’s Inspector

General’s audit; working with the data platform and website conversion; updating the

security, procedures, and policy guide; continuing network upgrades; working on Campaign

Finance Reports and Contributor Disclosure Reports; and processing of waiver of late fee

requests. See id.

15. Diverting election personnel from the tasks described in the preceding paragraph

will interfere with these processes. See id.

16. If early voting is not available, some of the public funds that have been expended

will have been wasted.

17. Under the early voting statutes, plaintiffs can continue to vote on election day at

their usual polling place.


6

18. The early voting statutes do not compel the plaintiffs - - or anyone else - - to vote

early, or to vote outside of their ward or district.

19. Plaintiffs, themselves, are completely free to vote in their ward or district on the

date of the primary election, September 12, and the date of the general election, November

7. No one is compelling them to vote early or at a different location.

20. The early voting statutes permit a voter to cast a ballot, prior to election day, at

a specified location or locations.

21. The early voting statutes make elections more convenient to some voters by

giving those voters the option of a flexible voting schedule.

22. Early voting provides busy voters with the option of choosing the day on which

they will vote.

23. The Early Voting Laws provide voters an option that allows them to choose to

vote at certain locations during a five-day period before the date of the election.

24. The Early Voting Laws are not compulsory. If they choose to do so, voters may

ignore early voting and vote on the traditional voting day in their usual ward or district.

25. The Early Voting Laws offer an option of an additional voting time and location.

26. Voters will vote early only if they find it more convenient to do so.

27. The early voting statutes will reduce lines on election day.

28. Voters and others, such as employers, have made plans for early voting.

29. According to one survey, approximately 20% of the National population voted

early.


7

30. Roskelly, et al. v. Lamone, et al., No. 141 (Md. Ct. Apl. Sept. Term 2006), was

filed on June 27, 2006, and it has proceeded through the trial court to the Court of Appeals,

where it was concluded by final decision on July 25, 2006. The Roskelly plaintiffs were able

to commence their challenge to early voting long before the current plaintiffs, even though

the Roskelly plaintiffs (unlike the present plaintiffs) had to circulate and submit referendum

petitions.

31. One Maryland employer, as quoted in THE DAILY RECORD, has stated: “We’re

open seven days a week. If [an employee’s] day off doesn’t coincide with Election Day,

sometimes its difficult for them to make it. . . . People have busy schedules. A number of

them don’t vote just because it isn’t convenient.”

32. The Maryland Chamber of Commerce views early voting as beneficial to its

members. “It gives another option for the traveling business person. . . .” This statement is

part of the legislative history of the Early Voting Laws.

33. The Service Employees International Union supported the early voting bill,

stating: “[O]ur members work irregular hours or multiple shifts and often do not have access

to private transportation, thus making standard voting procedures cumbersome.” This

statement is part of the legislative history of the Early Voting Laws.

34. The Commissioners of Carroll County noted that early voting would make voting

“more accessible. . . .” This statement is part of the legislative history of the Early Voting

Laws.


8

35. The Montgomery County Board of Elections noted that early voting would reduce

lines on election day. This statement is part of the legislative history of the Early Voting

Laws.

36. The League of Women Voters noted that early voting would provide voters with

greater flexibility and choice, stating: “The increased number of citizens who work more than

one job, who work at a location far from their home and thus their polling place, or whose

long working day begins and ends with the delivery and retrieval of children from day care

arrangements requires that our system of voting allow flexibility to accommodate those

citizens who wish to vote but are prevented from doing so by the requirement that they vote

during a 13 hour period in the middle of a work week.” This statement is part of the

legislative history of the Early Voting Laws.

37. EL §10-315(a) provides the circumstances under which an employee may be

entitled to a two-hour absence from work in order to vote. A low-paid service worker who

lives in Baltimore City, is employed in Towson, and who commutes by bus may be hard-

pressed to vote within a two-hour period.

38. Some voters do not vote in primary or general elections on election day because

the date and time of the elections is inconvenient for them.

39. Plaintiffs allege that the General Assembly engaged in allegedly “partisan”

activity in enacting the early voting laws. Compl. ¶¶21, 24.

40. The same voter identification procedures will be applied at early voting as are

applied as if the voter appeared on September 12 or November 7.


9

41. Electronic poll books record the identification of early voters.

42. Under SBE’s Guidelines, electronic voting machines will be programmed with

the proper ballot styles and list the proper choices.

43. If early voting is unavailable, SBE will have to deploy additional voting

machines to handle the increased number of voters on the day of the primary election and the

day of the general election.

44. Defendants would call an expert who they proffer would make the following

statements:

a. Early voting provides a secret and independent voting experience to blind and

visually impaired voters, while those voters would need the assistance of

another person to mark and mail an absentee ballot.

b. Early voting provides a secret and independent voting experience to manually

impaired voters, who, depending on the severity of their impairment, might

need the assistance of another person to mark and mail an absentee ballot.

c. Early voting does not present security issues inherent in absentee ballots, such

as loss in the mail, stray marks, and, late posting.

d. While early voting provides voters with a “second chance” to correct overvotes

and undervotes, absentee balloting does not.

e. Overvoting and undervoting is a problem in elections.

45. SBE did not promulgate Guidelines while the first early voting bill was subject

to a veto.


10

46. Early voting has been publicized on web sites, such as SBE’s web site, and the

sites of the League of Women Voters and the American College of Emergency Physicians.

Wherefore, the defendants request that the Court accept this unopposed proffer and

dispense with any and all requirements for proof by the defendants through testimony or






v. * FOR



* * * * * * * * * * * * *

AFFIDAVIT OF LISA LUCAS

I, the undersigned, state as follows:

1. I am over 18 years of age, a citizen of Maryland, and have personal knowledge

of the facts contained herein.

2. I am employed as a patient transporter at Greater Baltimore Medical Center

(“GBMC”) in Towson, Maryland.

3. I live on West Coldspring Lane in the Park Heights neighborhood of West

Baltimore, in Baltimore City.

4. As a patient transporter at GBMC, my work schedule varies and is typically set

two weeks in advance. I generally work five eight-hour shifts per week. While my present

shift is from 6:30 to 3:00, it can vary each time a new schedule is posted. Additionally, I am

sometimes required to work additional, unscheduled shifts if a co-worker is absent or if there

are additional staffing demands.

5. Many of the hospital workers at GBMC, like many nurses and technicians,

work 12- or 16-hour shifts.


2

6. I rely on public transportation to commute to work; this requires one bus

transfer in each direction. My commuting time ranges from 40 minutes to 90 minutes each

way.

7. I have four children between the ages of one and 11 years old. Dropping them

off at daycare before work and picking them up afterwards generally adds an additional

twenty minutes both before and after work.

8. Because of the variation in my work schedule, the length of my shifts, and the

distance between my home and work, it can be difficult to make reliable plans to attend my

local polling place during the hours when the polls are open.

9. At the time of the 2002 gubernatorial election, I was employed in a different

position at GBMC, with shifts that were not predictable. On Election Day that year, I arrived

at the polling place just after it had closed and was unable to vote, despite leaving for the

polling place directly after returning home.

10. Since July 24, 2006, I have been working as a canvasser for the Service

Employees International Union (SEIU) , Local 1199, United Healthcare Workers East, which

is the collective bargaining unit that represents me in my position at GBMC. As a canvasser,

I have been going door-to-door in Baltimore City and Baltimore County, conducting voter

registration drives and encouraging people to vote. Through this process, I have become

aware of the early voting option, and I have informed others about it.

11. I plan to vote at an early voting site in the upcoming primary and general

elections so that I can participate in get-out-the-vote efforts on September 12 and November



I N T H E CIRCUIT COURT FOR ANNE ARUNDEL COUNTY, MARYLAND

- - - - - - - - - - - - - - - - x :MARIROSE JOAN CAPOZZI, et al., : : Plaintiffs, : v. : Civil No. C-2006-115807 : STATE OF MARYLAND, et al., : : Defendants. : :- - - - - - - - - - - - - - - - x Annapolis, Maryland

August 8, 2006

MOTIONS HEARING

WHEREUPON, proceedings in the above-entitled matter

commenced.

BEFORE: THE HONORABLE RONALD A. SILKWORTH, Judge

APPEARANCES:

FOR THE PLAINTIFFS:

M. ALBERT FIGINSKI, Esq. CHRISTOPHER R. WEST, Esq. The Law Offices of Peter G. Angelos One Charles Center, 22nd Floor 100 North Charles Street Baltimore, Maryland 21201

FOR THE DEFENDANTS:

MICHAEL D. BERMAN, Esq. WILLIAM BROCKMAN, Esq. Office of the Attorney General 200 St. Paul Place, 20th Floor Baltimore, Maryland 21202

CompuScribe(301) 577-5882


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I N D E X

Page

Outline of Impending Motions (Mr. Figinski). . . . . . . . . . . . . . . . . . 3 (Mr. Berman). . . . . . . . . . . . . . . . . . . 6

Argument on Behalf of the Defendants with respect to Laches . . . . . . . . . . . . . . . . . . . . 25Argument on Behalf of the Plaintiffs . . . . . . . . 27Decision of the Court. . . . . . . . . . . . . . . . 37

Opening Statement on Behalf of the Defendants (Mr. Berman). . . . . . . . . . . . . . . . . . . 47

Argument on Behalf of the Plaintiffs with respect to Article 3, Section 49, of the Maryland Constitution. . . . . . . . . . . . . . . . . . . 53Argument on Behalf of the Defendants . . . . . . . . 55

Argument on Behalf of the Plaintiffs with respect to Article 1, Section 1, of the Maryland Constitution. . . . . . . . . . . . . . . . . . . 59Argument on Behalf of the Defendants . . . . . . . . 66Rebuttal Argument on Behalf of the Plaintiffs. . . . 71Rebuttal Argument on Behalf of the Defendants. . . . 73

Argument on Behalf of the Plaintiffs with respect to Articles 15 and 17 of the Maryland Constitution. . . . . . . . . . . . . . . . . . . 75Argument on Behalf of the Defendants . . . . . . . . 88Rebuttal Argument on Behalf of the Plaintiffs. . . . 99Rebuttal Argument on Behalf of the Defendants. . . . 103

Closing Argument on Behalf of the Plaintiffs . . . . 111Closing Argument on Behalf of the Defendants . . . . 118Rebuttal Argument on Behalf of the Plaintiffs. . . . 124

EXHIBITS FOR IDENTIFICATION IN EVIDENCE

Plaintiffs' 1 through 3 61 61

Keynote: "---" indicates inaudible in the transcript.


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1 P R O C E E D I N G S

2 THE CLERK: All rise.

3 THE COURT: Good morning. Have a seat, please.

4 We will call the case of Capozzi versus State of

5 Maryland, et al., C-2006-115807. Counsel, identify yourselves,

6 please.

7 MR. FIGINSKI: For the plaintiffs, Your Honor,

8 Albert Figinski and Christopher West.

9 MR. BERMAN: Good morning, Your Honor. For the

10 defendants, Michael Berman.

11 MR. BROCKMAN: And Will Brockman.

12 THE COURT: Okay. Are you all ready to proceed?

13 MR. FIGINSKI: Yes, sir.

14 THE COURT: All right. First of all, I am not sure

15 if you have any order of issues you wish to take. Perhaps we

16 could start by having you all outline for me what are all of

17 the pending motions, so that I have a clear list of everything

18 that is pending. And then we will go from there.

19 MR. FIGINSKI: What is pending, Your Honor, from the

20 plaintiffs' standpoint, is a motion for summary judgment and a

21 motion for injunctive relief. In order to address those

22 matters, pursuant to the phone conversation between Your Honor

23 and counsel on Friday, I think we proposed to have the

24 plaintiffs address the defendants' issues of laches and the

25 defendants' issues regarding the inability of Your Honor to


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1 grant injunctive relief because of convenience, et cetera.

2 And our argument in short, Your Honor, is that we

3 stand here before you raising constitutional issues only. The

4 issues before Your Honor, simply stated, is whether the two

5 statutes that we have challenged, which allow early voting,

6 passed constitutional muster under Article 1, Section 1, of the

7 Constitution of Maryland, and Article 15, Section 7, of the

8 Constitution of Maryland, and Article 17, Sections 1, 2, and 9,

9 of the Constitution of Maryland.

10 Now pursuant to the conversation on Friday,

11 yesterday the State, excuse me, the defendants presented by fax

12 to me and, I think, to Your Honor a proffer of what they would

13 prove if they had the opportunity to do it. And I think that

14 proffer, they can speak for themselves, but I think that

15 proffer goes to the question both of laches and injunctive

16 relief.

17 Now that document became a proffer, rather than a

18 stipulation, because there were certain things within that

19 proffer that the plaintiffs believed, and continue to believe,

20 are either irrelevant or immaterial or both or have impossible

21 issues of hearsay. Nevertheless, the State will proffer --

22 excuse me again -- the defendants will proffer the -- there are

23 factual issues, rather than putting on testimony. So that I

24 believe it would be appropriate for Your Honor to allow the

25 plaintiffs to begin this proceeding by arguing that you need


gaw 5

1 not be concerned with laches and that you may grant injunctive

2 relief.

3 I would propose to do that. I would propose to

4 argue, as well, that Article 1, Section 1, controls the case.

5 And I would ask Your Honor to hear from my colleague, Mr. West,

6 with respect to Articles 15 and 17. That's where we see t his

7 case, Your Honor.

8 THE COURT: So it is your position that there is

9 really no factual dispute. And the issues that the Court has

10 to decide are purely legal issues.

11 MR. FIGINSKI: That's correct, Your Honor.

12 THE COURT: Okay. Well, let me throw this out then.

13 When I first set this hearing, it was my understanding, perhaps

14 I was mistaken, that, because of the nature of the issues and

15 the need to get this resolved promptly and the obvious

16 considerations for appeal, that this matter was being set today

17 for a hearing what I thought was on the merits. We had a

18 conference call the other day because, in looking at the

19 motions and pleadings, it became apparent to me that that

20 wasn't the consensus.

21 Now I think this Court has authority to consolidate

22 the merits with -- so we could spend an awful lot of time

23 talking about TROs and preliminary injunctions and all that.

24 But if in fact there is -- and this is what I want you both to

25 address. If in fact the issues here are legal issues and there


gaw 6

1 are no issues in dispute -- although subject to your commentary

2 about the proffer, why should I not, in accordance with the

3 rules, hear the merits this morning?

4 MR. FIGINSKI: We would urge Your Honor to do that.

5 MR. BERMAN: Your Honor, may we be heard?

6 THE COURT: You may, but one second.

7 MR. BERMAN: Certainly.

8 THE COURT: Specifically, I am referring to Rule 15-

9 505(b), which provides for consolidation with trial on the

10 merits. And it says, "Before or after commencement of the

11 hearing on the preliminary injunction, the Court may order that

12 a trial on the merits be advanced and consolidated with the

13 preliminary injunction hearing so long as any right to trial by

14 jury is preserved."

15 Well, we don't have a right to a trial by jury here.

16 So I'll hear from you.

17 MR. BERMAN: Your Honor, Michael Berman for the

18 defendants.

19 We are here on a very expedited matter. We received

20 the plaintiff's trial memorandum at 3:00 o'clock yesterday,

21 which gives us no opportunity to respond to their trial

22 memorandum.

23 Just on a housekeeping matter, there is -- our memo

24 was filed on Friday, the plaintiffs' memo on Monday.

25 Yesterday, informal copies of the Lucas affidavit and the


gaw 7

1 proffer were faxed to chambers. And both of those have been

2 filed with Your Honor's court clerk this morning.

3 We would submit to Your Honor that there is really

4 no advantage and no reason to consolidate the hearing today,

5 whether it be on the TRO or a preliminary injunction or both,

6 with the hearing on the merits. Whatever ruling Your Honor

7 makes today is an appealable ruling, we would submit,

8 particularly if it is a preliminary injunction ruling.

9 There are issues that we believe the State is

10 entitled to go into, factual issues. And there are legal

11 issues. We would like the opportunity to file a brief in

12 response to their Schaeffer argument. We have never had that

13 opportunity. And given time on the merits, there might be a

14 different resolution than on this expedited, hasty matter.

15 Counsel -- and I appreciate the professionalism and

16 courtesies that have been shown by opposing counsel. They have

17 been very pleasant a professional to deal with. But this case

18 has gone forward -- bear with me one moment, please, Your

19 Honor -- at a speed that is unbelievable.

20 In an election case called Socialist Labor Party

21 versus Rhodes, 290 Fed.Sup. 983, the Court noted that there had

22 been a constitutional violation by Ohio's election laws. And

23 the Court said, "However, with respect to printing names on the

24 ballot, relief is going to be denied." And the Court said,

25 "We again emphasize we are confronted with two lawsuits hastily


gaw 8

1 conceived and submitted to the Court on pleadings, briefs, and

2 oral arguments. We are asked to go through the Ohio election

3 laws declaring such as we deem inappropriate to plaintiff's

4 purposes to be unconstitutional and, in any event, award them

5 ballot position irrespective of the remaining election laws.

6 We're expected to hastily decide these cases involving

7 important constitutional questions and grant the relief that

8 should come only from the legislature against a deadline of two

9 to four weeks. The Court noted that the Socialist Party had

10 ample time to raise its challenge earlier."

11 We would submit that going to the merits at this

12 point would respectfully be improper. The rule does give the

13 Court discretion to consolidate, but we don't know how this

14 case is going to, if I can speak colloquially, shake out in the

15 end. And we would suggest that --

16 THE COURT: Well, what's going to shake out the -- I

17 mean, I'm not sure I know what you're talking about. If, in

18 fact, I conclude that the issues in this case really are legal

19 issues and that Mr. Figinski is right, there is no real factual

20 dispute, forget the issue of laches for a moment, then what

21 else can shake out? I mean, it looks to me as if you all have

22 on both sides done a fine job in briefing your respective legal

23 arguments. So what can shake out with reference to legal

24 arguments?

25 MR. BERMAN: Your Honor, there is a twofold


gaw 9

1 response. What can shake out with response to legal arguments

2 is, in the plaintiffs' trial memorandum served at roughly 3:00

3 o'clock yesterday afternoon -- and I don't criticize him.

4 We're all rushing. That's the best they could do and that's

5 fair -- they raised a number of legal issues. They go back to

6 history of 1860. They brief the Schaeffer case. We have never

7 been granted the opportunity to brief that.

8 They cite a whole bunch of dictionary definitions.

9 Okay? I got that at 3:00 o'clock. When I went home last

10 night, I didn't have the 20 dictionaries they have. I looked

11 up the one that's online, and there are four definitions. They

12 only gave Your Honor one. And the fourth definition supports

13 us. We think on a matter that is this important on the merits,

14 we should be entitled to have enough time to read their brief

15 and respond to it.

16 Secondly, on the question of facts, as Your Honor is

17 aware from Friday's conference, we respectfully disagree. Your

18 Honor will rule how Your Honor rules. We think that, for

19 example, we are entitled to develop facts showing the impact of

20 a ruling on elections. We're entitled to develop facts showing

21 the reason for plaintiffs' delay, that we are entitled to show

22 prejudice.

23 Balance of convenience is an injunctive element

24 regardless. And that is, we respectfully submit, factual.

25 What damage will there be to them if a -- and I'm not talking


gaw 10

1 permanent, not preliminary, now -- if a permanent injunction is

2 denied? What damage do they have versus what damage if it's

3 granted? Irreparable injury. Whose irreparable injury and

4 what? We believe that we are entitled to factually ask the

5 plaintiffs what irreparable injury will you, plaintiff, suffer

6 from this statute?

7 And we think that for two reasons it would not be --

8 three reasons -- it would not be appropriate to consolidate.

9 First of all, this case can go to the Court of Appeals

10 immediately after Your Honor rules without consolidation.

11 Consolidation is not going to stop it, or the lack of

12 consolidation is not going to preclude an immediate appeal.

13 Two, these are important legal issues. There were

14 new arguments raised yesterday at 3:00 o'clock. They may

15 prevail on preliminary relief; they may not prevail on

16 preliminary relief. But as to final relief, we should be

17 entitled to at least have the opportunity to brief the issues

18 that they raised yesterday.

19 And three, for all the reasons that we have all

20 talked about a number of times, including Friday's conference,

21 we believe that we can show there are factual issues. And the

22 decision of the Court of appeals on a preliminary injunction or

23 TRO might eliminate that question.

24 So we would respectfully oppose consolidation of the

25 final permanent injunction with today's proceeding.


gaw 11

1 Thank you, Your Honor.

2 THE COURT: Mr. Figinski?

3 MR. FIGINSKI: Mr. Berman, Your Honor, said that

4 I've been pleasant during these proceedings. That's a term

5 that is rarely used with respect to me. And I thank him for

6 it. However, what the State, excuse me, what the defendants

7 have been talking about, about facts and inconvenience,

8 frankly, Your Honor, is the biggest sandstorm that has ever

9 been launched in a courtroom. If this statute is

10 unconstitutional because the legislature had no power to enact

11 it without a constitutional amendment, then it doesn't matter

12 how convenient it may be some voter to vote early.

13 Now, Your Honor, I can only draw on my own

14 experience. In 1980, there was a lot of folks in Baltimore

15 City who wanted to have rent control. They got an initiative

16 going, and they put rent control on the ballot. We challenged

17 that. The case went to the Court of Appeals. The case is

18 Cheeks versus Sedlair. It's decided in 1980. And it was

19 decided after the initiative had passed. So what we had in

20 Cheeks versus Sedlair was the citizenry of Baltimore saying "We

21 like this." But the Court of Appeals of Appeals said, "You

22 can't do it that way. It violates Article 11(a) of the

23 Maryland Constitution. And the initiative is void."

24 Now there is a possibility, Your Honor, that

25 somebody sitting out there who's running for office couldn't


gaw 12

1 wait until this election is over and then have the Court of

2 Appeals rule. We brought this case here to get it done before

3 that can happen.

4 THE COURT: Well, what would be more convenient or

5 inconvenient, to have it resolved now on an -- or, as you

6 posit, someone after the election filing this? Because you're

7 saying you could not even have filed this. And after the

8 election is over, then a challenge could have been raised.

9 MR. FIGINSKI: If the words of Judge Karwacki are

10 correct in the Schaeffer case -- I have that here, sir.

11 Schaeffer is 338 Md. 75 at page 8. There was a question of

12 laches. And the Court drew a distinction -- Your Honor, did

13 you by any chance receive by fax our memo yesterday?

14 THE COURT: Yes.

15 MR. FIGINSKI: Because we spelled this out in that

16 memo. But what the Court said very clearly is that where it

17 challenges to a statute that's intrinsically void, which is

18 what we are arguing, then laches doesn't apply.

19 Now Ross v. State, which is a more recent case,

20 decided in 2005 --

21 THE COURT: Judge Battaglia's case.

22 MR. FIGINSKI: Judge Battaglia's case -- in a

23 footnote adopt Karwacki's language. Now, Your Honor, I don't

24 know how I can say it better than to tell you that -- I hate to

25 draw this analogy. But there are four cases that have gone to


gaw 13

1 the Court of Appeals of Maryland to interpret Article 3,

2 Section 29, of the Constitution, which bars the legislature

3 from enacting a bill with two subjects. Those four cases are

4 Porten Sullivan at 318 Md. 387; State versus Prince George's in

5 329 Md. 68; Migdal versus State, 358 Md. 308; and Delmarva

6 Power, 371 Md. 356.

7 And not -- the issue was, did the statute contain

8 two subjects? And the Court focused on whether the bill

9 contained two subjects, not whether either bill was good, bad,

10 or indifferent, convenient or inconvenient.

11 MR. BERMAN: Your Honor, may we be heard on this

12 housekeeping matter? I don't want to interrupt Mr. Figinski,

13 but I think we have gotten far afield from Your Honor's

14 question.

15 THE COURT: One second.

16 Mr. Figinski, do you think you are far afield?

17 MR. FIGINSKI: I'm sorry, Your Honor. I'm trying to

18 be pleasant in this case. And I think they're making it

19 increasingly more difficult. I am not far afield, Your Honor.

20 I am directly on point.

21 THE COURT: I think I understand what your argument

22 is. What your argument is, that the two cases you have cited

23 say that, with reference to laches, if in fact the defect, as

24 you are alleging, is inherent, this is an inherent defect, and

25 this enactment is unconstitutional, then laches does not apply.


gaw 14

1 All of the cases that the other side, as I read, cited were

2 cases that involved people who challenged their position on the

3 ballot or a defect in the process.

4 Let me hear from this side.

5 MR. FIGINSKI: One last and I will sit down, Your

6 Honor. I agree with your statement, Your Honor. I would urge

7 that we get to the merits of the case as quickly as possible,

8 because this is an issue of law, not fact.

9 Thank you.

10 THE COURT: Okay.

11 MR. BERMAN: Your Honor's opening question was, what

12 is before the Court today? And that is what I mean by we are a

13 little bit far afield, Your Honor, not that Mr. Figinski's

14 argument is inappropriate at the right time.

15 What do we have right now? We have a motion for a

16 TRO. We have a motion for a preliminary injunction. We have a

17 motion for summary judgment. We have the defendant's motion to

18 dismiss. That is respectfully the entire court file to

19 verified complaint seeking a permanent injunction. So there

20 are four separate things being requested, three by the

21 plaintiff, one by us. TRO, preliminary injunction, summary

22 judgment, and dismissal.

23 I would like to argue the laches issue. And I would

24 like to argue the constitutional issues. My request from the

25 Court today is, I'll join Mr. Figinski. Let's argue then. And


gaw 15

1 at the end of the argument, the Court can decide whether, as

2 the Court said on Friday's telephone conference, whether it is

3 going to decide on the TRO, whether it's going to decide on

4 preliminary injunction, whether it's going to rule on summary

5 judgment, whether it's going to rule on the motion to dismiss,

6 and whether it's going to grant final relief. At the end of

7 the argument, the Court will have heard everything and can make

8 an informed decision.

9 I would suggest right now that the plaintiffs, as

10 movant, argue their request for relief, and that they argue it

11 from A to Z. They can argue it from TRO through final

12 injunction, and that we then have the opportunity to argue our

13 defense. We'll argue laches. We'll meet them on their

14 constitutional issues. And we'll argue our case. And they can

15 then do their reply. And the Court grants us sur reply, we'll

16 do that. And the Court can then decide: Am I going to deny or

17 grant the TRO? Am I going to deny or grant the preliminary

18 injunction?

19 I would submit to the Court, based on my experience

20 and research, each one is immediately appealable or subject to

21 cert to the Court of Appeals. The Court can also decide at

22 that point whether it believes summary judgment is ripe. We

23 contend it's not. Whether our motion to dismiss should be

24 granted, even though they haven't responded to it, and whether

25 to consolidate this proceeding with the final hearing on the


gaw 16

1 merits.

2 But I would suggest that that is the -- we could

3 spend hours wrangling over what we've wrangled over. And I

4 don't think we are going to get anywhere until Your Honor hears

5 what we have to say on the issues.

6 THE COURT: Okay. All right. Well, why don't we

7 begin then by hearing -- I will hear from you on the issue of

8 laches.

9 MR. FIGINSKI: You want to hear from me?

10 THE COURT: Well --

11 MR. FIGINSKI: Your Honor, I will be delighted to

12 talk about laches.

13 THE COURT: -- whatever order you wish to raise.

14 Now it is my understanding that you wish to present your

15 proffer. Mr. Figinski told me, and I have received the fax,

16 which you intended to do, but I'm not sure if -- I don't know

17 what you intend to do with that, other than what he

18 represented. So how would you like to proceed on the issue of

19 declaratory, I mean on the issue of the laches?

20 MR. BERMAN: Your Honor, the proffer goes to laches,

21 balance of convenience, and public interest. What we would ask

22 on the proffer is that the Court accept the proffer as a waiver

23 of the need and accept the Lucas affidavit and the Goldstein

24 affidavit as a waiver of the need to put witnesses on the stand

25 and introduce documents. The plaintiffs may raise any


gaw 17

1 objections that they may want on relevance, as we've said;

2 that's reserved. But that there is an agreement that we don't

3 need to call anybody.

4 And with that, we are prepared to argue the laches

5 issue. It will take us a maximum of ten minutes to argue the

6 laches issue. Let Mr. Figinski do his response. We could do

7 any quick replay, and the Court could decide whether laches

8 applies as a matter of law or as a matter of fact.

9 THE COURT: Okay. Mr. Figinski, do you accept the

10 proffer, subject to whatever --

11 MR. FIGINSKI: I think it's wholly, most of it, with

12 the exception of the paragraphs that say that the bill was

13 enacted on a certain -- I think it's the first seven

14 paragraphs. The rest of it, I suggest and urge is wholly

15 objectionable on the basis of materiality. But that, we don't

16 get to on -- well, let them argue their laches. I object to

17 their introduction of any evidence other than on the --

18 whatever legal arguments they have with respect to the

19 constitutional provisions that are at issue. And I will answer

20 them on laches when you wish.

21 THE COURT: All right. I will accept your proffer.

22 I will hear from you on laches.

23 MR. BERMAN: I'm sorry. I did not hear the end of

24 Your Honor said. Your Honor said --

25 THE COURT: I accept your proffer. I will hear from


gaw 18

1 you on laches.

2 MR. BERMAN: Thank you, Your Honor.

3 Your Honor, let me first address the legal issue

4 raised by plaintiffs, does it bar the constitutional claim. We

5 say that it does. They say it does not under Schaeffer as

6 applied in Ross. Let's take a couple of hypotheticals. Let's

7 say that the legislature in the year 1860 passed a statute that

8 said women can't vote. A woman born in the year 2000 would not

9 be barred by laches. We concede that.

10 That is not the factual situation here. We are here

11 in an election case.

12 Let's take another hypothetical. Early voting for

13 the general election is due in October 31 through November 5, I

14 believe, the general election being November 7. Let's assume

15 that on October 31 voters are lined up at the polls ready to

16 vote. And plaintiffs, who have less professional counsel and

17 less of a public spirit than these plaintiffs, wait until

18 October 31 at 9:00 a.m. And they come in, and they file for a

19 restraining order saying the legislature never had the power to

20 enact these bills.

21 We would submit that the Schaefer court, the case

22 they rely on, Judge Karwacki's opinion, which was not an

23 election case -- Schaeffer involved a municipal statute where

24 they hadn't published the right notice. And someone waited

25 four years to challenge it. The Schaeffer case could not


gaw 19

1 reasonably be interpreted to mean that on October 31, 2006,

2 while the voters are at the polls for early voting, that

3 someone can come in and restrain and enjoin it and not be

4 barred by laches.

5 Ross was a case, I did the Ross case. In Ross,

6 Mr. Ross knew before the election that Ms. Branch, her campaign

7 finance committee, had allegedly not filed reports. Mr. Ross

8 waited until the election was conducted, and then he brought

9 his challenge. And the Court of Appeals rejected it.

10 A case means no more than the facts it has decided

11 on. That is basic stare decisis, basic precedence. The Ross

12 case had no factual application to this case. Mr. Ross was not

13 challenging the validity of the campaign finance laws. he was

14 not challenging the constitutionality of the campaign finance

15 laws. He was saying Ms. Branch's campaign finance committee

16 didn't comply with the law, and he is entitled to an

17 injunction.

18 So any language in Ross about laches and challenges

19 is factually distinguishable from this case. Again, would the

20 Ross court -- we pose a rhetorical question -- would the Ross

21 court seriously have said that on October 31, 2006, as the

22 voters are wrapped around for early voting, wrapped around the

23 polling sites, that it's not too late to challenge early

24 voting?

25 Elections are a different animal, because there is


gaw 20

1 complex machinery that is in place and because the rights of

2 non-parties are inherently involved. One thing that the Ross

3 court did consider, Your Honor, is the prejudice to the

4 electorate. If Mr. Ross could wait until the election passed

5 and challenge it, the electorate would have to come out and

6 vote again. And in election cases, respectfully, the Court

7 should consider a factor that doesn't exist in other cases and

8 didn't exist in Schaeffer.

9 Now, the plaintiffs assert that no statute can stand

10 if it's unconstitutional. And the answer to that is they're

11 wrong. They're just plain wrong. Reynolds versus Simms, the

12 United States Supreme Court, we cited it, it said even if a

13 legislative apportionment scheme is improper, unconstitutional,

14 it may be too late to grant equitable remedies. The Supreme

15 Court said the Court has to consider the delay by the

16 plaintiffs, the mechanics of an imminent election, the impact

17 on the election, and that the Court may withhold relief, even

18 if there is a constitutional violation.

19 The Socialist Party case that I read the excerpt

20 from to Your Honor, the Court found a violation of the Ohio, a

21 constitutional violation by the Ohio laws. And they said the

22 Socialist Party could have brought this case earlier, and they

23 didn't. And they're barred. And you can't make the Court wade

24 through the Ohio election laws and the hastily, ill-conceived,

25 not ill-conceived, a hastily presented lawsuit.


gaw 21

1 Now, legally we contend that -- where we differ from

2 the plaintiffs is the plaintiffs say laches never applies to an

3 allegation that a statute is inherently unconstitutional. And

4 we say that under Reynolds v. Simms, in the election context,

5 there is a different standard.

6 Factually, where are we with laches? Well, first of

7 all, the plaintiffs waited from February 10 to July 17 to

8 challenge the first early voting law. And they waited from

9 April 10 to July 17 to challenge the second early voting law.

10 The Ross-Kelly plaintiffs had to circulate referendum

11 petitions, which these plaintiffs didn't have to do. And they

12 were able to file by June 27. They were able to challenge the

13 same laws three or four weeks earlier than these plaintiffs.

14 So we have passage of time. During that passage of

15 time, we have prejudice. First of all, the train has left the

16 station. I am not going to go through the proffer. Your Honor

17 has read it. It's pretty straightforward. The State Board of

18 Elections has publicized early voting. Local boards of

19 election have publicized early voting. The Lucas affidavit

20 shows that unions have publicized early voting. The

21 stipulation shows that the American College of Emergency

22 Physicians has publicized early voting. The train has left the

23 station. Voters have been told: You can vote early.

24 Secondly, it's too late to turn the ship of state

25 around. Early voting is due to begin on September 5 for


gaw 22

1 primaries and October 31 for the general election. There are

2 3.3 million registered voters in Maryland. If the Court denies

3 injunctive relief, what will happen is that early voting will

4 go forward. If the Court grants injunctive relief here today,

5 what happens in terms of laches and turning the ship of state

6 around?

7 Well, first of all, voters have been told in

8 websites, from Ms. Lamone appearing on WBAL, from

9 Mr. Goldstein, the deputy administrator appearing in public

10 places, from local boards, voters have been told by the State

11 of Maryland, by this government, by the State Board of

12 Elections and the local board of elections: You can vote

13 early.

14 If this Court enters an injunction, we think that

15 the state board has a duty, and we think, frankly, the Court

16 would order us, to try to communicate to the voters and tell

17 them, oops, there's been a mistake; you don't have that right

18 anymore.

19 What assurance is there that we can get to 3.3

20 million voters in less than four weeks, so that none of those

21 voters, so all those voters know they cannot show up on

22 September 5 and September 6 and October 31 and November 1 and

23 November 2? There is no assurance. That is real prejudice.

24 And it is prejudice -- Your Honor could have the hardest heart

25 towards the State Board of Elections. I'm not saying that Your


gaw 23

1 Honor does, but you could. It's prejudice to voters.

2 That was a factor in Ross, where the Court of

3 Appeals applied laches in the election context. What happens

4 to the voter, the hypothetical voter, who shows up on September

5 5 planning to vote, get in his or her car and drive to

6 California that morning for a family function? That voter

7 doesn't get the word that early voting is canceled. They show

8 up on September 5. There's a locked door. There's no polling

9 place. And they have no ability to vote.

10 Statutorily, to get an absentee ballot at the last

11 minute, they have to show up at the offices of the local board

12 of election under Title 9-302 or something, the absentee

13 ballot, they have to show up at the offices of the local board

14 of election in person or through an agent and get an absentee

15 ballot. If they're going to California, they can't do that.

16 That person may lose their right to vote. And that's not an

17 extreme hypothetical.

18 The State Board of Elections will also be

19 prejudiced, as will local boards of election. There have been

20 tremendous efforts made while the plaintiffs sat inactive,

21 while they could have filed a lawsuit, to implement early

22 voting.

23 These facts go to both, and I'm going to focus

24 solely on laches. These go both to the prejudice in laches.

25 They also go to balance of convenience in the injunctive relief


gaw 24

1 factor.

2 But on laches, public resources have been expended

3 while the plaintiffs sat silent. And if an injunction is

4 granted, more public resources must be expended to notify 3.3

5 million voters. And finally, respectfully, there could be a

6 reversal in the Court of Appeals that requires everything to be

7 redone.

8 Your Honor, on laches we would submit, we are happy

9 to address the merits after the plaintiffs make their merits

10 argument. On laches, we would submit that the Schaeffer case

11 is not an election case. The Schaeffer case is not an election

12 case. The Ross case was an election case. However, it was a

13 completely different set of facts. It was not a challenge to a

14 statute. It was not a constitutional challenge. It was a

15 challenge saying Ms. Branch's campaign finance committee didn't

16 comply with the law. That's it.

17 We do not think, as a matter of law, that the Court

18 of Appeals has held that laches never bars an election

19 challenge. In fact, the Court of Appeals has applied laches in

20 the Ross case to an election challenge. And Reynolds versus

21 Simms, the Supreme Court decision saying consider the impact on

22 the election and the mechanics on the election, is a full and

23 complete answer to the legal argument presented by the

24 plaintiffs.



gaw 25

1 THE COURT: Thank you very much.

2 Mr. Figinski?

3 MR. FIGINSKI: May I proceed, Your Honor?

4 THE COURT: You may.

5 MR. FIGINSKI: The Schaeffer case together with the

6 Ross case footnote, in my view, are determinative. In response

7 to that, the State has said that there are a couple things that

8 you have to take into consideration. One of them is Reynolds

9 versus Simms. Now I haven't looked at the Reynolds versus

10 Simms in 40 years. But if I remember Reynolds versus Simms

11 correctly, it was the case that the Supreme Court said that the

12 Senate situation was not the same in the states as it was in

13 the United States government context. And consequently, the

14 states had to reapportion on one man/one vote under Baker

15 versus Carr in Reynolds versus Simms.

16 Your Honor, what Reynolds versus Simms did was leave

17 in place a system that had grown up in the states over about

18 180 years. And if an injunction is granted in this case, all

19 that would be left in place is what has been done in Maryland

20 ever since we went away from voice voting to ballot voting. We

21 would go back to voting on election. So I don't think Reynolds

22 versus Simms is at all apposite.

23 More relevantly, Your Honor, they say they want to

24 brief this case, but they give you not a single Maryland

25 authority supporting their position that Schaeffer, as


gaw 26

1 embellished by Ross in its footnote, is somehow inapplicable.

2 And then they say, Your Honor, that the train has left the

3 station.

4 I want you to put that comment, Your Honor, in

5 juxtaposition with the argument made at page 42 of the State's,

6 excuse me, the defendants' memorandum. Because at page 42,

7 they conjure up two 40-year-old cases to argue that Article 1,

8 Section 1, of the Maryland Constitution does not apply to

9 primary elections. Now if they're right, we're not fighting a

10 September deadline, we're fighting a November deadline because,

11 clearly, Article 15 and Article 17 deal with general elections.

12 More particularly, Your Honor, I am not agreeing

13 that Article 1, Section 1, does not apply to primary elections.

14 There are two cases that are out there that seem to say that.

15 But the Suessmann case, which Mr. Berman argued, S-u-e-s-s-m-a-

16 n-n, versus Lamone, 383 Md. 697, decided November 17, 2004, is

17 intriguing on this Article 1, Section 1, issue. In Suessmann,

18 they were fighting over what members of a party could vote for

19 judges in a primary election. The Court held that they

20 couldn't. But it was a divided court.

21 Judge Cathell in his concurring opinion and Judge

22 Bell, joined by Judge Eldridge in dissent, said that Article 1,

23 Section 1, does apply to the election that was before them, a

24 primary election. So what we have, at least three judges of

25 the Court of Appeals who disagree with their argument on page


gaw 27

1 42 of their submission filed Friday. The train has not left

2 station. Schaeffer is good law. And the poor person who shows

3 up at the polling place in 17 counties will show up at the

4 election board and can get an absentee ballot.

5 And the easy remedy for anybody else is to station

6 somebody and give them an absentee ballot, because the law --

7 it is now possible to get an absentee ballot, even though you

8 are not going to be absent from the state.

9 Your Honor, there is no real answer to Schaeffer, as

10 interpreted by Ross. And we submit that the laches argument is

11 nothing more than a hobgoblin in this case. We submit further

12 that when we get to the issue of convenience and the issue of

13 an injunction, I will say more. But when the State puts on the

14 table a single Maryland case that says you're denied an

15 injunction even though the statute is unconstitutional, I will

16 applaud them. I'll get Mr. West to help me gather my stuff.

17 And we'll walk out that door. They can't do it, because, Your

18 Honor, it doesn't exist. Let us get to the merits, please.

19 Thank you for hearing me.

20 THE COURT: Counsel?

21 MR. BERMAN: With the Court's permission briefly on

22 rebuttal, Your Honor. I will focus solely on laches. The

23 plaintiffs argue that some poor voter can show up at the

24 election, at the early voting site, and if no one's there, they

25 can go to the election board. How nice a solution. The


gaw 28

1 plaintiffs can wait five months to file their lawsuit and tell

2 a voter who does exactly what the government has told that

3 voter to do, that that voter should then turn around, take more

4 time, have a more inconvenient experience, go to their election

5 board, and so forth.

6 The plaintiffs argue we can station someone at the

7 early voting site that is no longer functional. Well, there

8 are some problems with that. 9-305(c), a late application for

9 an absentee ballot, you have to get the application at the

10 local board, not at an early voting site. The state board

11 doesn't have people, and the local boards don't have people, to

12 sit around for five days at an empty early voting site passing

13 out absentee ballots because the plaintiffs decided they

14 weren't going to file a timely lawsuit.

15 Mr. Figinski says we haven't cited any Maryland case

16 that says that laches applies in this case. And he is correct.

17 We cited the Supreme Court. We cited a bunch of lower courts

18 that applies to the Supreme Court. And he's correct. And the

19 reason is because no plaintiff has waited this long to make a

20 constitutional challenge. Stare decisis, the basic concept of

21 precedent, is a case means no more than the facts that it is

22 decided on. Neither Schaeffer nor Ross were decided on facts

23 that parallel this case.

24 Schaeffer waited four years to challenge municipal

25 statute. Ross waited until after the election to say that the


gaw 29

1 Branch campaign finance committee failed to comply with the

2 statute. There is no case on point where a voter waited until

3 the eve of an election to challenge it.

4 Now the plaintiffs realize they have a problem, and

5 they are trying to backpedal off the primary election. Okay?

6 They sued saying early voting is unconstitutional as to the

7 primary and the general election. And now they're saying,

8 well, the train may not have left the station, because we may

9 be wrong on the primary election. They are wrong

10 constitutionally, and we'll get to that on the merits. The

11 Constitution doesn't apply to primary and doesn't bar early

12 voting. But they've sued based on it. Even as to the general

13 election, the train has left the station.

14 It is virtually impossible to contact all voters and

15 advise them, all 3.3 million people, and advise them that they

16 cannot show up between October 31 and November 5 for early

17 voting. And we would submit that if even one of those voters,

18 even one, is disenfranchised or inconvenienced because the

19 plaintiffs sat on their laches for five months or 14 weeks,

20 whichever date the Court choose to select, that is wrong. And

21 we would submit that a court of equity should, and in fact

22 must, consider that fact. And under Reynolds v. Simms consider

23 the mechanics of an imminent election and the impact on the

24 election.

25 THE COURT: And when do you think they should


gaw 30

1 have -- when would have been timely? What would have been the

2 last -- when should they have filed this challenge?

3 MR. BERMAN: First of all, the first bill went into

4 effect on February 10. That bill could have been challenged in

5 the month of February. The second bill went into effect on

6 April 10. At that point in time, it really became critical

7 because the boards began implementing the law, whether the

8 deadline was April 11 or April 12 or April 15, I don't have a

9 calendar and I don't know what a Saturday and a Sunday is.

10 But --

11 THE COURT: Well, wouldn't you have been in the same

12 position if they had -- let's say they had started in April.

13 Wouldn't they have been -- aside from -- let's see. They did

14 file in July . So we're talking about arguably two-and-a-half

15 to three months. So -- and you're suggesting that, of course,

16 the train has to get on the tracks and move, and then it takes

17 an awful long time to do what you need to do to get voters --

18 so how is this two to three month delay -- wouldn't the State

19 have started the train rolling anyway back in April?

20 MR. BERMAN: Your Honor, the State might have

21 started the train rolling, but it might have started it rolling

22 in a different way. If -- we would suggest that the critical

23 date is February 10, and they could have filed suit on February

24 11, 12, 13, 14, 15, whatever reasonable time after that. If

25 the Court were inclined to look at the April 10, the second


gaw 31

1 early voting statute, and if suit had been filed, let's say,

2 within three or four or five or six days after that, the State

3 would have gone forward with implementation, but it might have

4 gone forward in a different manner.

5 For example, the State might have done its internal

6 preparation but not started voter outreach, not done public

7 announcement, not gone out and told voters. The State might

8 even have sent out press releases: Don't count on early voting

9 yet. Who knows? I can't say what hypothetically would have

10 happened.

11 THE COURT: Well, let me ask you this, these are

12 complicated matters. It almost sounds like you're suggesting

13 that the plaintiff should have acted instantaneously. Now

14 obviously, there are complicated issues, complicated for you

15 all. Certainly the plaintiffs had to secure counsel and do

16 whatever researched they needed to do to get involved. I mean,

17 isn't there a certain amount of time that they should be

18 entitled to do that?

19 MR. BERMAN: Your Honor --

20 THE COURT: I mean, you're suggesting they should

21 have done it February 10, as soon as the bill was signed.

22 MR. BERMAN: It's interested because Mr. Figinski

23 has -- the plaintiffs have spent the entire lawsuit arguing

24 about how simple this is. It's just a pure question of law.

25 The answer is, Your Honor, the Court of Appeals in Ross said a


gaw 32

1 person challenging an election has a duty, an obligation, to do

2 it promptly. Now what is prompt? I can't tell Your Honor it's

3 one day or five days. I can't tell Your Honor how long it

4 takes to counter a complaint. I can't tell Your Honor if

5 Mr. West or Mr. Figinski had a wedding or a funeral or a

6 personal obligation that would extend the deadline by three

7 extra days. I can't pin it down. But I can say that waiting

8 until July 17 is too long.

9 Plaintiffs file lawsuits quickly in many contexts.

10 The Ross-Kelly plaintiffs, Ross-Kelly, which is in the

11 stipulation or the proffer, Ross-Kelly challenged the same

12 laws. Those plaintiffs had to circulate referendum petitions

13 and get thousands of signatures. And they were able to file

14 suit by June 27, not July 17.

15 These plaintiffs had to read three constitutional

16 provisions and type of a complaint, according to them, because

17 Mr. Figinski stood up here at this very table and said "You

18 just read the Constitution and I win."

19 THE COURT: Well, in the legal world, though, is

20 there really a significant difference between complicated legal

21 issues and research between June 27 and July 17? Isn't that

22 almost, I mean, in the grand scheme of things, almost at the

23 same time? Certainly it's 20 days apart, but, I mean, it's

24 pretty fast. I mean, it's pretty close to the time that the

25 Ross-Kelly plan was filed.


gaw 33

1 MR. BERMAN: I'm not saying that June 27 would have

2 been timely for this challenge.

3 THE COURT: Oh, okay. You think the Ross-Kelly --

4 MR. BERMAN: I'm saying that the evidence is that a

5 prudent attorney could have filed at least by June 27. I'm not

6 conceding that that would have been timely for this lawsuit,

7 Your Honor.

8 But secondly, Your Honor, as the Court looks into

9 this courtroom and looks at the two litigants here, the Court

10 respectfully needs a third eye looking out at the electorate,

11 because the Court is the protectorate of the electorate and the

12 election. And the bottom line is, if delay by the plaintiffs

13 injuries those voters in any way, if it takes away the vote of

14 one of them, if one service employer, one janitor, one

15 healthcare worker, one nurse, one lawyer, one doctor, one

16 corporate executive loses their vote because they delayed,

17 that's wrong. That's where we say laches occurs.

18 Whether they had to file suit on April 11 -- let me

19 back up and look at it the other way, Your Honor. It was no

20 secret that the early voting law was going through the

21 legislature. April 10 was when the veto was overridden. The

22 bill was passed before that. And it was introduced before

23 that. The plaintiffs didn't learn about it on April 10. They

24 were not justified in waiting until April 10 to go get a lawyer

25 and to challenge this lawsuit. They knew it was coming for two


gaw 34

1 reasons.

2 One, the February 10 law was in effect. And two, it

3 was in every newspaper that this law was being introduced,

4 vetoed, overridden. So I would submit they could have filed by

5 April 11. And they should have. They should have gotten their

6 lawyers early. They should have colloquially gotten their

7 ducks in line and be ready to go. And that would have avoided

8 prejudice to the voters.


10 THE COURT: Okay. I will ask Mr. Figinski --

11 MR. FIGINSKI: Yes, sir.

12 THE COURT: -- how come you all didn't file -- well,

13 I'll ask the question: How come you didn't file sooner than

14 July 17?

15 MR. FIGINSKI: That's when the plaintiffs had hired

16 us and we were ready to file. I'll tell Your Honor a story

17 about that, if you care to hear it. I mentioned the Cheeks

18 versus Sedlair case in 1980. There were a lot of people in

19 Baltimore that wanted rent control. There were a lot of people

20 in Baltimore that didn't want rent control. I thought it was

21 unconstitutional to do it by initiative.

22 I made a mistake. I filed the suit in proper

23 person. Others later joined me. Some people say that because

24 I was right constitutionally, but wrong politically, I no

25 longer sit where you sit. I sit out here. But in the 26 years


gaw 35

1 since then, Your Honor, I've been down this road many times.

2 And I do not file suits in my own name anymore. I wait for

3 clients. And when I have clients, I file them. And I file it

4 promptly.

5 You know, this whole discussion is reminiscent of

6 another thing, Your Honor. They have the temerity to suggest

7 to you the Ross-Kelly case. Well, what was the Ross-Kelly case

8 all about? It was Ms. Lamone sending a 10-day letter to

9 Mr. Ross-Kelly while he was on vacation, so he didn't get it.

10 And he therefore didn't file a response to their claim that his

11 challenge to the -- what do you call that stuff?

12 THE COURT: Referendum?

13 MR. FIGINSKI: -- the referendum. It was a time

14 deadline. Nothing more. The Ross-Kelly people were plenty

15 willing to collect the signatures. She kept turning them down.

16 This is a -- the smokescreen and sandstorm that the defendants

17 have put out here, Your Honor, just is reprehensible. Let's

18 please get to the merits, Your Honor.

19 THE COURT: Okay.

20 MR. BERMAN: May I clarify very briefly, Your Honor?


22 MR. BERMAN: Your Honor, we are not casting any

23 dispersions on Mr. Figinski or Mr. West as counsel. We are

24 saying as a matter of law the plaintiffs the delayed. We are

25 not asserting, and have never asserted, anything that would


gaw 36

1 support an assertion that Mr. Figinski should have filed this

2 suit pro se or in proper person or anything else.


4 THE COURT: Okay. I'm going to step down a minute

5 and take a look at a couple of these cases. And then I'll be

6 right back. I did want to ask you one thing, though. One

7 issue that maybe we can resolve was the motion to dismiss the

8 State of Maryland. Is that, Mr. Figinski, is that --

9 MR. FIGINSKI: I have no problem with your

10 dismissing the State of Maryland, Your Honor. But if -- is

11 that all your motion says? The motion goes beyond that, Your

12 Honor. The motion goes beyond that to dismiss the entire

13 complaint.

14 Now let me make a point on that. Since they have

15 offered additional "facts" and argument beyond the complaint,

16 they have turned that motion by operation of the rules into a

17 summary judgment request. So we have here -- we'll agree that

18 the State should go.

19 THE COURT: Okay. That was my only question.

20 MR. FIGINSKI: But most particularly, Your Honor,

21 the other defendants should stay.

22 THE COURT: Okay.

23 MR. FIGINSKI: And they should be tested on a

24 summary judgment basis, as the rules and the cases clearly

25 establish.


gaw 37

1 THE COURT: Okay. I am going to step down for a few

2 minutes. I'll be right back.


4 (Whereupon, a brief recess was taken.)


6 THE COURT: Have a seat, please.

7 We are back on the record, Capozzi versus State of

8 Maryland, Linda Lamone, and the Maryland State Board of

9 Elections, C-2006-115807. Counsel, identify yourselves again,

10 please.

11 MR. WEST: Your Honor, Christopher West and Albert

12 Figinski on behalf of the plaintiffs.

13 MR. BROCKMAN: Your Honor, Will Brockman and Michael

14 Berman from the Attorney General's Office on behalf of the

15 defendants.

16 THE COURT: All right. I have had an opportunity to

17 take a look at the cases and just review the issue of laches,

18 review the proffer that was submitted by the State, consider

19 the arguments of counsel, including Mr. Figinski's objections,

20 and all the comments and arguments that were made previously.

21 And I am prepared to rule on the issue of laches.

22 Both parties have cited or discussed the Ross case

23 and the Schaeffer case. And essentially, as the Schaeffer case

24 points out, the defense of laches to the assertion of an

25 equitable remedy, as in this case, is it must be evaluated on a


gaw 38

1 case-by case basis. Essentially, laches is simply the

2 inexcusable delay in pursuing one's right or objection without

3 necessary reference to the duration in asserting and equitable

4 claim.

5 Now even where -- and, of course, there has to be

6 then prejudice the other side. And if, in fact, there was an

7 excusable delay that prejudices the, in this case, the board of

8 elections and the voting process, then it could be a bar to the

9 plaintiffs' claims.

10 Now in reviewing the proffer, Senate bill 478 became

11 the law on February 16. House bill 1368, Chapter 61, became

12 the law on April 10, 2006. And as the proffer indicates, the

13 State Board of Election began implementing house bill 1368

14 immediately on April 10, 2006, citing the affidavit of Ms.

15 Goldstein.

16 In this case, plaintiffs filed their claim or filed

17 their complaint for declaratory relief and request for

18 injunction on July 17, 2006. Well, certainly the earliest that

19 they could have filed would have been February 16, 2006, or

20 they could have filed on April 10, 2006, when House bill 1368

21 became the law.

22 We know from the facts in this case from the proffer

23 that the primary is set for September 12, 2006. Early voting

24 is due to begin on September 5 through September 9. The

25 general election is set for November 9 with early voting set to


gaw 39

1 begin on October 31 to November 4.

2 One of the arguments of the AG's office is that

3 certainly the plaintiff could have/should have contemplated

4 that early voting was coming. The train was on its way. Well,

5 I think certainly the same applies to both sides. I am not

6 persuaded, considering all of the facts set forth in the

7 proffer and the affidavits and the arguments of counsel, that

8 the plaintiffs in this case unreasonably delayed the filing of

9 this complaint.

10 The issues in this case are complicated. And

11 certainly they are important to all sides. But certainly

12 lawsuits don't just happen. They happen when -- of course,

13 they could be filed by self-represented litigants. But that

14 certainly would not be the usual circumstance. I guess it has

15 happened, but in this case that's not what happened.

16 Plaintiffs sought the assistance of Mr. Figinski.

17 In an ideal, perfect world, it would be nice to have as much

18 time as you possibly have, certainly in light of the issues of

19 this case, so that the legal issues can be sorted out. But I

20 can't conclude, and I have no -- I really have nothing but the

21 allegation of delay without any more specific facts that would

22 justify that in fact there could have been something filed

23 earlier.

24 In looking at the time frame and looking at the

25 complexity of the issues, certainly before one files a lawsuit,


gaw 40

1 they just don't happen. You have to do research. You have to

2 generate facts. You have to talk to your client. And I see it

3 is only a matter of a couple of months after the House bill

4 1368 became effective on April 10, 2006, when the plaintiffs

5 filed this complaint. So I cannot conclude that, having filed

6 this complaint on July 17, that the plaintiffs sat on their

7 rights or inexcusably delayed this case.

8 Now, there is no question that the challenge to

9 early voting, as filed by Mr. Figinski's clients, has slowed

10 and, depending upon the result, might even stop the early

11 voting train. But -- in fact, it is true that if the

12 plaintiffs are successful, there certainly may be a loss of

13 resources. I have determined that there has been no

14 inexcusable delay.

15 Even if I were to determine that there had been some

16 delay, and for the sake of argument that it could have been

17 filed earlier, I'm convinced that the train left a long time

18 before April 10 and that the process of early voting is not

19 something that just began on April 10. I am sure that the

20 Board of Elections and Ms. Lamone contemplated, prepared for,

21 was ready to implement, and then began the implementation.

22 If there was any delay, I don't believe that that

23 delay would have stopped the -- or that delay, other than the

24 filing of this lawsuit, would contribute to any significant

25 prejudice. I'm not suggesting that if early voting stops, then


gaw 41

1 the intent of the early voting statute or bill to try to make

2 early voting more convenient for voters, there certainly might

3 be some impact to individual voters. But I have to conclude,

4 in order to bar this claim by laches, that there has been an

5 inexcusable delay by the plaintiffs, that delay resulting in

6 the prejudice to the plaintiffs, or prejudice to the Board of

7 Elections and the voting process.

8 Now if it turns out that early voting doesn't

9 survive, then the train is going to stop or its course is going

10 to be altered. But I don't find that the delay has resulted in

11 any prejudice to the election process in and of itself.

12 Because if early voting doesn't go forward, the primary still

13 does go forward. Voters still have the right to vote on the

14 date of the primary. Voters still have the right to vote on

15 the date of the general election.

16 So would they have lost the benefits and perhaps

17 some convenience, which is apparently the intent of the

18 statute? Yes. But I don't think that the integrity of the

19 election, electoral process, and the primary or the general

20 stage would be affected.

21 For these reasons, this Court concludes that laches

22 does not apply and would not bar the claim of the plaintiff.

23 If, in fact, and as a further and final comment, if I concluded

24 that there was some inexcusable delay, then I think

25 Mr. Figinski's argument and analysis of the two cases that he


gaw 42

1 cites, Schaeffer and Ross, is correct, correct in the sense

2 that laches -- well, let me cite from the case, from Schaeffer.

3 And it is true that in Schaeffer, this case involved a

4 challenge to an ordinance, as opposed to a constitutional

5 question. But in essence, in Schaeffer, the case said that an

6 ordinance that is clearly a usurpation of power can be attacked

7 at any time.

8 Well, it certainly seems to this Court that if in

9 fact the plaintiff is correct that the early voting statute is

10 unconstitutional for the reasons cited, it could be challenged

11 at any time. And that's a substantive challenge. And I don't

12 think that even under those circumstances laches would be a

13 bar.

14 So for all those reasons, I conclude that laches is

15 not a bar to be accident in this case, and we will go forward.

16 Now my inclination at this time is to proceed with

17 the merits of the case, because I don't see that there is any

18 argument, any factual dispute, that relates to the legal issue.

19 Mr. Figinski has raised several legal issues. I don't see any

20 need to delay this case further. I think it's important to the

21 voting process that we do this timely, do it quickly. So I

22 intend to proceed with the merits.

23 We will discuss how you might want to do that. And

24 if it turns out that there is some need for some brief

25 additional time because the argument was raised that we may


gaw 43

1 need some time to address some legal issues, I will consider

2 giving that time. Although the nature of this case is such

3 that it has to be processed quickly. And you all have frankly

4 done a pretty good job to get at this point. And I think

5 we're -- the case is certainly at a posture where it can be

6 resolved, at least certainly can be resolved in this court. I

7 can't speak for the Court of Appeals. But my guess is that

8 they would be able to hear it timely such that this can be

9 resolved even before the early voting primary to start.

10 Okay.

11 MR. BERMAN: Thank you, Your Honor. We of course

12 accept the Court's ruling on the inclination to go to the

13 merits. I would respectfully point out that in ruling on

14 laches, one point that the court said -- and I don't have Your

15 Honor's exact words -- that there was nothing but an allegation

16 of delay without specific facts. And one reason that we again

17 contend that the merits should be delayed is, for instance, our

18 interrogatory number seven asks the plaintiffs to state why

19 they waited from the date or dates supplied, and their answer

20 to interrogatory number one "until July 17," to commence this

21 lawsuit.

22 So we have pending interrogatories that go directly

23 on the merits to one of the issues that Your Honor has just

24 raised. And we would respectfully renew our position that this

25 be solely on the TRO and preliminary injunction.


gaw 44

1 THE COURT: Mr. Figinski?

2 MR. FIGINSKI: I think Your Honor has ruled. I will

3 stand with Your Honor's ruling.

4 THE COURT: Okay. Well, I think -- I hope my ruling

5 has been clear, that I don't find as a matter of fact that, in

6 considering all the facts set forth in the proffer, accepting

7 them, although Mr. Figinski has raised some objections to them,

8 I don't find that there is any evidence to indicate an

9 inexcusable delay. And I don't believe that there could be any

10 facts developed that would suggest that in light of the nature

11 of this, even if one were to determine, for example, that

12 perhaps the plaintiffs could have contacted Mr. Figinski ten

13 days earlier than they did because of some schedule or

14 something like that. That wouldn't change the Court's

15 conclusion at all.

16 I mean, it seems to me that looking at the facts in

17 its entirety in terms of the timing, we're only talking about a

18 couple of months after the last statute became effective. And

19 I just don't see that there is really any factual dispute. I

20 don't see that there could be any facts developed that would

21 suggest that under the circumstances of the facts of this case

22 that they -- they certainly couldn't have filed the lawsuit

23 before it became effective or as the legislature was

24 contemplated it or as the veto was pending.

25 So under those circumstances, I don't think there is


gaw 45

1 any factual -- I don't think that -- I think my ruling stands

2 as stated.

3 Mr. Figinski?

4 MR. FIGINSKI: How does Your Honor wish to proceed

5 now? What I would -- may I make a suggestion?

6 THE COURT: Yes.

7 MR. FIGINSKI: My suggestion would be that we

8 present our arguments as to Article 1, Section 1, of the

9 Constitution and why that is a problem. I can do that. As to

10 Article 17 and 15, I would defer to Mr. West. And I would ask

11 that we be allowed to proceed. Then the defendants can

12 respond. And if need be, we can rebut. That's what I would

13 propose to do, allow me to speak, then allow Mr. West to speak,

14 then allow them to do their argument.

15 Would that be okay?

16 THE COURT: That's okay with me. I would prefer to

17 deal with one issue and hear your argument and then hear the

18 response.

19 MR. FIGINSKI: Okay. Then can we do Article 1,

20 Section 1, and then they can respond to Article 1, Section 1,

21 and then I can rebut to their response?

22 THE COURT: Okay. That's fine.

23 MR. FIGINSKI: Is that okay with you, Mr. Berman?

24 MR. BERMAN: Your Honor, it's fine with, if I may,

25 one tweak. We would like to sort of have a little bit of an


gaw 46

1 opening with an overview that would not be limited to Article

2 1, section 1.

3 THE COURT: Okay. We can do that. Well, let me do

4 this, let me hear your opening statements first. Mr. Figinski,

5 you can make a brief opening. Then I will hear from them, if

6 they wish to make a brief opening. If you don't wish to make

7 one, you don't have to.

8 MR. FIGINSKI: I'll accept that invitation.

9 THE COURT: You will accept that invitation.

10 By the way, I'm sure you all know, I did read your

11 briefs and the trial memorandum. Unless you filed something

12 this morning before I got out here that I haven't seen, if you

13 did, I will read that, too.

14 MR. FIGINSKI: Your Honor, I have a clean copy

15 marked "original" of the trial memo. Should I hand that up to

16 you?

17 THE COURT: Why don't you hand that to Madame Clerk?

18 MR. BERMAN: And we did file an affidavit this

19 morning, Your Honor, of Ms. Lucas.

20 THE COURT: Lucas? Okay.

21 MR. FIGINSKI: Your Honor, I apologize. There are

22 some spelling errors in here. And my eyes just didn't catch

23 them.

24 THE COURT: All right. We'll overlook them, if we

25 notice them.


gaw 47

1 MR. FIGINSKI: If you can, Your Honor, I would

2 appreciate that.

3 THE COURT: All right.

4 MR. FIGINSKI: I assume that Mr. Berman will make

5 his opening, and then I will talk about Article 1.


7 MR. BERMAN: Your Honor, I will be very, very brief.

8 Educators telling us that we learn through hearing things more

9 than one time, but that repetition is the worst way of

10 teaching. Because if you just say the same thing over and over

11 again, people tune out. So educators say that you teach by

12 being redundant, by saying the same thing in a slightly

13 different way. That is what I propose to do very briefly.

14 Early voting is truly no more than a secure absentee

15 ballot which is accessible to blind, visually impaired, and

16 manually impaired voters, as well as voters like Ms. Lucas, who

17 has four kids and a job, who need a flexible schedule. Let me

18 talk for a moment about accessibility.

19 When one votes in person in Maryland, as Your Honor,

20 has seen through your own personal voting experiences, you vote

21 on an electronic voting machine. Those machines have the

22 capability to have headsets for visually impaired voters. And

23 those machines have the capability to have puff sticks, p-u-f-

24 f, for manually impaired voters.

25 So a visually or manually impaired voter gets a


gaw 48

1 secret and independent ballot. They go into the polling place,

2 and they cast their vote by themselves. In fact, Maryland was

3 sued in federal court before we got these machines by blind and

4 visually impaired voters, who said that it was a violation of

5 the Americans with Disabilities Act to make them vote with

6 assistance, when they could get a secret and independent

7 ballot.

8 If these voters do not get to vote early, and if,

9 for instance, a disabled voter is unable to get to the polls on

10 election day, they don't get a secret and independent ballot.

11 Now, plaintiffs seek to deprive these voters, the busy voter,

12 the visually impaired voter, and the manually impaired voter,

13 of a flexible option for no apparent purpose. And the

14 plaintiffs' argument is contrary to -- I'm not going to deal

15 with -- we'll divide up the issues. I'm not going to deal with

16 specific issues, but it's contrary to the spirit of the

17 Maryland Constitution.

18 The Maryland Constitution does not prohibit, and in

19 fact it encourages, flexible, convenient voting. We have gone

20 through the history at length in the memorandum.

21 Now in their trial memorandum at page 22, the

22 plaintiffs raise an interesting issue. They try and

23 distinguish some of the cases that we cite by saying, well,

24 Texas and Tennessee called early voting absentee voting.

25 Different label. And they say magically it became okay,


gaw 49

1 because it was called absentee voting.

2 In fact, 16 states call early voting "no excuse in

3 person absentee voting." Under Article 1, Section 3, of the

4 Maryland Constitution, which has been cited on page 51 of our

5 memo, the General Assembly has the power to provide by suitable

6 enactment for voting by qualified voters, "who are absent at

7 the time of any election in which they are entitled to vote."

8 And the General Assembly can also provide for voting by "other

9 qualified voters who are unable to vote personally," unable to

10 vote personally.

11 Historically, back in 1918, absentee voting was

12 limited to soldiers. Later it was limited to people in

13 hospital beds. And later it was limited to people who were

14 absent from their ward or district. All those limitations have

15 been taken out of Article 1, Section 3.

16 Article 1, Section 3, says "The General Assembly can

17 specify the time and manner of voting for anybody who is unable

18 to vote personally." What we really have here is no excuse in

19 person absentee voting. No excuse, Your Honor, is where -- it

20 comes out of the absentee ballot. It used to be you had to

21 provide the election board with an excuse to get an absentee

22 ballot. I'm going to be away. Now it's no excuse. You simply

23 say I want to vote absentee. So that's the no excuse language.

24 Your Honor, earlier in this case, and Mr. Figinski

25 and I go way back, and we talked in Queen Anne's County on the


gaw 50

1 transcript about sandstorms. And we talked about Muhammad Ali

2 and various other things. So now I feel free to talk about

3 tsunamis.

4 Let's assume that early voting goes forward here in

5 Annapolis. And let's assume there are four days of early

6 voting. And let's assume, say, 15 percent of the electorate

7 takes advantage of those four days. And let's assume there's a

8 tsunami, and it disrupts the election. And we can't have the

9 fifth day of early voting. And we can't have voting on

10 November 7.

11 But let's assume that the State of Board of

12 Elections, fortunately, is able to get the ballots that were

13 cast earlier and take them to high ground and preserve them.

14 Would anyone say there has been an election, because there has

15 been four days of early voting?

16 If the plaintiffs are consistent with their

17 argument, they must say yes, there has been an election.

18 Because if they answer that question no, they lose all three of

19 their constitutional challenges. But would anyone say that

20 yes, there has been an election because 15 percent of the

21 electorate cast ballots that were never counted, never

22 processed, and the remainder of the electorate was unable to

23 vote?

24 The plaintiffs' constitutional arguments do not hold

25 water. Your Honor has said that in this argument we will


gaw 51

1 divide out the three different constitutional arguments that

2 they rely on. And I assume that we will deal with Article 3,

3 Section 49, which plaintiffs basically say doesn't help the

4 State, because there is actually four constitutional

5 provisions.

6 But we would submit that that portion of this

7 argument deals with only one factor that the Court should and

8 must consider, and that is the likelihood of success on the

9 merits, or, if the Court goes to final relief, success on the

10 merits. The Court should still consider public interest,

11 balance of convenience, and irreparable injury.

12 I will not be repetitive. I am trying to be

13 redundant. In irreparable injury, plaintiffs have none. They

14 can vote as usual. Plaintiffs can assert third party rights.

15 And in fact, they are not trying to assert the rights of third

16 parties; they are trying to defeat the rights. They are trying

17 to make, whether it's conscious intent, the thrust of their

18 argument will make voting less convenient for third parties.

19 Public interest. Their whole argument is circular.

20 And unconstitutional law is not in the public interest. In

21 fact, convenient voting is in the public interest. Why do

22 these plaintiffs want to make voting less convenient. They're

23 not alleging vote dilution. They're not alleging anything

24 else. Typically, a voter will come in and say: Hey, State,

25 you've made it too hard to get on the ballot, or, hey, State,


gaw 52

1 by cutting the districts this way, you're diluting my voting

2 power.

3 These plaintiffs aren't making any such assertion.

4 And what we have here, of course, is an emergency statute, at

5 least one emergency statute, enacted by a super majority over a

6 veto.

7 Balance of convenience. Plaintiffs seek to enjoin

8 emergency legislation enacted for the public welfare. They

9 cannot challenge, as the cases we have cited point out, they

10 cannot challenge the emergency declaration. They are not

11 permitted, the Court of Appeals has said, they are not

12 permitted to challenge that finding. They are going to make

13 voting less convenient, where there has been detrimental

14 reliance on their silence. They will hurt people like

15 Ms. Lucas with her four children and her job, who has said, "I

16 have a tough time getting to the polls when they're open."

17 They can vote as usual. The balance of convenience tips

18 markedly.

19 To sort of sum up, plaintiffs seek to enjoin a

20 primary, early voting on a primary, even though they pretty

21 much have orally conceded and pretty much in writing have

22 conceded that not one of the constitutional provisions they

23 cite relates to primary elections. And primary elections

24 didn't exist when the Constitution was adopted.

25 That law colors the remainder of their argument.


gaw 53

1 Plaintiffs seek the extraordinary remedy against a statute

2 involving the fundamental rights of others to vote in a

3 convenient manner regarding an emergency statute enacted to

4 protect the public welfare, which was passed over a veto

5 pursuant to plenary and expressed constitutional powers of the

6 General Assembly. Plaintiffs are asking the third branch of

7 government to step between the other two branches.

8 We will address each of the constitutional arguments

9 sequentially. Mr. Figinski said he would like to start with

10 Article 1, Section 1. That's fine with us. We also have the

11 provision regarding Tuesday as voting day, the Fewer Election

12 Amendment, and the impact of Article 3, Section 49, which says

13 that unless otherwise -- unless inconsistent with the

14 Constitution, the General Assembly can pass laws regarding the

15 time, place, and manner of elections.



18 Mr. Figinski.

19 MR. FIGINSKI: Your Honor, could I amend our process

20 for a second? Because I think I would like to deal with this

21 Article 3, Section 49 as a perhaps opening overview to what you

22 are going to hear later. Before we go to Article 1, before we

23 go to article 15 or we go to Article 17, let's talk about

24 Article 3, Section 49, if it please the Court.

25 THE COURT: Any objection?


gaw 54

1 MR. BERMAN: That's fine, Your Honor.

2 THE COURT: Okay. Mr. Figinski?

3 MR. FIGINSKI: I want Your Honor to take a close

4 look at the section of their brief where they talked about

5 Article 3, Section 49. Article 3, Section 49, Your Honor,

6 says, in effect, it is a grant under the Constitution, through

7 the legislature, to act with respect to elections.

8 On page 23, they have the gall, because that's what

9 it's got to be, Your Honor, I have to stop being pleasant, to

10 italicize matters, time, and place without any focus on what

11 is key in that section. What is key in that section is that

12 it is -- "the General Assembly shall have power to regulate

13 by law, not inconsistent with this Constitution," so that

14 anything that the legislature chooses to do with respect to

15 elections must be looked at through the constitutional

16 prism.

17 They cite a Montgomery County case. And that

18 Montgomery County case stands for the following proposition.

19 Montgomery County, as only Montgomery County can do, decided it

20 could make the election law process better by imposing certain

21 elements to the process that were not in the election code of

22 the state. The Court of Appeals of Maryland says, "Hey, you

23 can't do that because the legislature has plenary power." All

24 that Montgomery County case stands for, Your Honor, is that a

25 local government can't act in derogation of the state law.


gaw 55

1 We don't have that here. It's irrelevant here.

2 So, Your Honor, I th ink the discussion of Article

3 3, Section 49, should be brief and uncomplicated. All it means

4 is that you've got to test whatever the legislature did with

5 respect to an election law in the prism of Article 1, Section

6 1, Article 15, or Article 17. So I'm going to stop on Article

7 3, Section 49, because it is nothing more than a restraint, a

8 constitutional restraint, upon the legislature.

9 We cited the Benkowski case, Your Honor, Article 4,

10 Section 22, Judge Eldridge writes about that, where that

11 Article 4, Section 22, talks about you can amend the -- statute

12 by law. And Judge Eldridge writes, and we quote it in our

13 memorandum, "It doesn't mean you can change the Constitution."

14 And all we're saying about Article 3, Section 49, is that if

15 the statutes that were enacted violate the Constitution, they

16 cannot stand.

17 I'll sit down. I'll let them argue that it's

18 different than that, and I'll respond.

19 MR. BERMAN: You know what, Your Honor? I still

20 Mr. Figinski pleasant, notwithstanding his disclaimers. He's a

21 good arguer, good lawyer, nice man. And you know what? We

22 actually agree. We really do.

23 I'm not suggesting to you that Article 3, Section

24 49, answers the questions that are before Your Honor. It

25 doesn't. We rely -- well, first of all, in the Montgomery


gaw 56

1 County case, we're not citing it over the facts that

2 Mr. Figinski cited. We rely for the proposition that's at page

3 274 Md. 60 that the intent of Article 3, Section 49, is to give

4 the General Assembly pervasive control over elections. The

5 case said that. It stands for that. That's what we cited it

6 for.

7 The provision says that the General Assembly can

8 regulate the time, place, and manner of elections. That's the

9 language we are relying on. Early voting. No one can argue

10 that early voting doesn't affect the time and place of

11 elections. That's what it does. Now they rely on the language

12 that the General Assembly can do it unless it's "inconsistent

13 with the Constitution."

14 Article 1, Section 3, says if people are "unable to

15 vote," the General Assembly can make laws that permit them to

16 exercise their franchise. The General Assembly has the power

17 to provide by suitable enact "for voting by qualified voters of

18 the State of Maryland, who are absent at the time of any

19 election in which they are entitled to vote, and for voting by

20 other qualified voters who are unable to vote personally and

21 for the manner in which the time and place at which such

22 absent voters may vote and for the canvas and return of such

23 votes."

24 We don't think Article 3, Section 49, and early

25 voting are in any way inconsistent. Article 1, Section 3, on


gaw 57

1 absentee voting authorizes what was done and will address the

2 other three constitutional provisions. What we do assert right

3 now, subject to addressing the other provisions, is that

4 Article 3, Section 49, places a weight on the scale that is

5 before Your Honor, and it's a pretty heavy weight.

6 It expressly says that the General Assembly can

7 regulate the time and place of elections. That is an express

8 recognition of the General Assembly's plenary power. And we

9 think that Article 3, Section 49, puts a heavy weight on the

10 scale in our favor. We agree with Mr. Figinski that because of

11 the inconsistent language, it does not answer the question.


13 THE COURT: Mr. Figinski.

14 MR. FIGINSKI: Briefly, Your Honor. Mr. Berman made

15 reference in his opening to some remark that I made about

16 Cassius Clay and Queen Anne's County. And what I said was

17 Cassius, before he became Muhammad Ali, was going into the ring

18 against a challenger. And he asked that challenger, "What's

19 your strategy, Challenger?" And the challenger said, "I'm

20 going to keep away from him." And Cassius Clay remarked, "He

21 can run, but he can't hide."

22 What the defendants have now done is that they have

23 changed what the legislature enacted. Because Article 3,

24 Section 29, of the Maryland Constitution requires all bills to

25 state their purpose. We have attached to our pleadings the


gaw 58

1 bills. You will find them under Exhibit C, as enacted.

2 Chapter 5, which establishes early voting, talks

3 about early voting, doesn't say a word, not a word, about it

4 being no excuse absentee ballot provision. It doesn't say a

5 word about creating secure absentee voting. It says it's

6 creating early voting.

7 Article 1, Section 1, deals with these

8 qualifications and not Article 3, because absentee balloting

9 still requires people to be absent. And people are going to be

10 voting in this state, but not where Article 1, Section 1, says

11 they shall vote. Now only does Chapter 5 says what I said,

12 Your Honor, but Chapter 61, which is Exhibit D, in its very

13 lengthy discussion talks about a voter bill of rights. And you

14 can look until your eyes are tired, and you will find nothing

15 in there about the creation of secure absentee voting or no

16 absentee balloting, no excuse absentee balloting.

17 They are creating, just as they created with respect

18 to what kind of relief we can have and what kind of timeliness

19 we acted on, they're creating a hobgoblin. We're talking

20 really here about Article 3, Section 49. And we agree with the

21 State that the key language -- we don't -- we agree with the

22 State that there is key language in Article 3, Section 49. We

23 don't agree as to what the key language is. And we suggest to

24 you that the key language is not inconsistent with this

25 Constitution.


gaw 59

1 And we suggest to Your Honor that in our memo we

2 cite to you the Benkowski case, which addresses another

3 constitutional provision where the constitutional provision

4 said may affect this stuff by law. And the Court said you

5 can't change the Constitution.

6 Now maybe I've talked too fast. But unless

7 Mr. Berman wants to talk some more about Article 3, Section 49,

8 I would just as soon go on Article 1, Section 1.

9 THE COURT: Mr. Berman?

10 MR. BERMAN: It's time, Your Honor. We have stated

11 our position.

12 THE COURT: Okay.

13 MR. FIGINSKI: Article 1, Section 1, Your Honor, I

14 believe the defendants have no objection to these maps.

15 Sometimes these microphones don't pick up people when they're

16 away from them.

17 THE COURT: You're fine. There are microphones

18 everywhere. And somehow I think the volume of your voice will

19 create no difficulty with our audio system.

20 MR. FIGINSKI: Your Honor, I was about to say that.

21 But you said it in such a much nicer way. Thank you. My wife

22 says to me always "just because you say it loud doesn't mean I

23 understand it."

24 THE COURT: I'll consider that.

25 MR. FIGINSKI: Wives have a way of saying things


gaw 60

1 that other people couldn't get away with.

2 But in any event, the first map here, Your Honor,

3 is -- this is wonderful -- a map of Baltimore County. Now we

4 are going to have -- they're going to have three -- is that

5 right, Chris, three places?

6 MR. WEST: Three.

7 MR. FIGINSKI: Three places in Baltimore County.

8 And this map shows that there are 12, 12 election districts, so

9 that people will be voting in Baltimore County in early voting

10 most likely in an election district where they are not

11 registered or do not reside.

12 This is a Carroll County map, Your Honor. There is

13 only one early voting place in Carroll County. And Carroll

14 County has 13 election districts, Your Honor. And they are all

15 colorfully depicted. And I'm sure you can't see them the way

16 I'm handling these things, but they are all colorfully

17 depicted. And it's obvious that unless the people are voting

18 in the -- people will be voting in the early -- let me try this

19 again.

20 In Carroll County, they will be voting in the

21 election places where you do not reside and where you are not

22 registered.

23 Baltimore City is probably the most incredible

24 example. There are 27 -- this is harder to see because the

25 Baltimore City map emphasizes, Your Honor, their city council


gaw 61

1 districts, not their wards or districts. There are, I would

2 proffer to you, 17 wards and, if my memory is correct, 512

3 precincts in Baltimore City. I spent a lot of time stealing

4 elections there years and years ago. I think that's right.

5 And it's obvious there were three early polling places. They

6 will be voting outside of their place where they are registered

7 and where they reside.

8 Now, Your Honor, we have done a couple things. This

9 is -- the Carroll County map is apparently Defendant's Exhibit

10 3. And the Baltimore County map is Exhibit 2. And the

11 Baltimore City map is Defendant's Exhibit 1, which I'm

12 offering, Your Honor, to show the number of wards and

13 precincts.

14 MR. BERMAN: Plaintiffs. Plaintiffs' exhibits.

15 MR. FIGINSKI: Plaintiffs, excuse me.

16 THE COURT: Plaintiffs' Exhibits 1, 2, 3. Any

17 objection?

18 MR. BERMAN: No, Your Honor. He is so pleasant he

19 is trying to make our case by offering our evidence for us.

20 THE COURT: They are received.

21 (The documents referred to

22 were marked for identification

23 as Plaintiffs' Exhibits 1, 2,

24 and 3 and were received in

25 evidence.)


gaw 62

1 MR. FIGINSKI: You're tempting me, Mr. Berman.

2 Your Honor, one provisions which no one has

3 mentioned is the Maryland Declaration of Rights Article 7.

4 Maryland Declaration of Rights Article 7 provides in pertinent

5 part for elections and the right of suffrage. and it says in

6 its pertinent place, "Every citizen having the qualifications

7 prescribed by the Constitution," note, "prescribed by the

8 Constitution," ought to have the right of suffrage." It

9 doesn't say prescribed by law. It says "prescribed by the

10 Constitution."

11 Article 1, Section 1, at the time of the Declaration

12 of Rights and it replaced in the Constitution was very much --

13 was much more lengthy than it is today. It included references

14 to white citizens, white male citizens, and things like that.

15 But clearly, the Declaration of Rights refers, gives the right,

16 confers the right as prescribed by the Constitution. And we

17 say the prescription of the Constitution is Article 1, Section

18 1.

19 What does Article 1, Section 1, require? That a

20 person be a citizen of the United States, who is entitled to

21 vote in the ward or election district in which he resides. And

22 once he is entitled to vote in that district, he shall vote

23 there until he acquires a new residence.

24 Now residence is a defined term. We defined it in

25 our memorandum from the infamous Blount case. That definition


gaw 63

1 says that for political purposes, residence means domicile, not

2 floating. I think it says for political and voting purposes.

3 Residence is contemplated by the framers of our Constitution

4 for political or voting purposes means a place affixed,

5 present, domicile.

6 Now it is our submission that the specification of

7 voting in the place where you reside and are registered is the

8 qualification for voting in the State of Maryland that cannot

9 be changed by statutory enactment, whether emergency or

10 otherwise. The right that's conferred is the right to vote

11 where you live and are registered.

12 We have cited a Latin phrase to Your Honor. The

13 statement of exclusive --- term. And that's an ancient Latin

14 phrase, which I can't even pronounce. But it's been applied by

15 two Maryland cases as recently as June, which was before we

16 filed our lawsuit.

17 Your Honor, our equation on early voting being

18 offensive to Article 1, Section 1, in our memorandum attached

19 to the verified complaint, in our memorandum attached to our

20 verified complaint, Your Honor, at page 13 we cite two cases

21 and we quote from two cases. As recently as 2003, the Court of

22 Appeals stressed that the Maryland Constitution sets forth the

23 exclusive qualifications, and the exclusive was emphasized in

24 the original, exclusive qualifications and restrictions on the

25 right to vote in the State of Maryland.


gaw 64

1 We cite another case in 1996. And we say that what

2 the Court said in 2003 is but a short version of what they said

3 in 1996. And in 1996 the Court said, "The General Assembly may

4 neither expand nor curtail the qualifications necessary to

5 vote." Now why do I bring it up since it's already in our

6 arguments? I bring it up because of all the stuff that they

7 have thrown at us, they don't say that these are misquotes.

8 They don't say that these are somehow taken out of context.

9 They don't even mention the two cases. And this, they didn't

10 get dropped on them on Friday. This has been around since July

11 17.

12 We'll get, Your Honor, at some point, to the

13 discussion of injunctive relief and summary judgment. I'm not

14 going to lapse into that. I'm talking just about Article 1,

15 Section 1, at this point. And I simply want to -- unless

16 Your Honor desperately wants to hear that at this juncture.

17 I will conclude on Article 1, Section 1, by saying that it is

18 the exclusive qualification for voting that controls this

19 case.

20 Now I do have to talk abut something else. At page

21 42 of their brief, the defendant suggested as to primaries,

22 Article 1, Section 1, doesn't apply. Now I have to admit that

23 they got two cases, one decided at 200 Md., the other decided

24 in 210 Md., which say that. I said before, and I'll just

25 reiterate, that the Suessmann case argued in one by Mr. Berman


gaw 65

1 has a concurring opinion by Judge Cathell and a dissenting

2 opinion by Chief Judge Bell joined by Judge Eldridge, which

3 content otherwise.

4 I am not, I want it to be absolutely clear on this

5 record, I am not waiving our argument to the Article 1, Section

6 1, provision dealing with primary elections. But I am

7 reiterating it and staying with it and recognizing that they do

8 have two cases which say it doesn't apply to primary elections.

9 Those cases are old. They haven't been cited for that

10 proposition since they were adopted. And I think that they are

11 not binding on this Court. But I can't give you a case that

12 says that they aren't. I can only tell you that the Court of

13 Appeals seems to be at odds as to whether Article 1, Section 1,

14 applies to primary elections.

15 Regardless, it certainly applies to general

16 elections. And, Your Honor, I have spoken my piece. The

17 exclusive and only qualification is in Article 1, Section 1.

18 And if they're running to Article 1, Section 3, they are

19 walking into the minefield of the unwary. And there are four

20 cases in the Court of Appeals which will haunt them, Porten

21 Sullivan, Prince George's, Migdal, and Delmarva Power, because

22 secure absentee balloting or no absentee ballot is not

23 anywhere to be found in the text or the type to the bills at

24 issue.



gaw 66

1 MR. BERMAN: With the Court's permission, Your

2 Honor, in the Jackson case, the Maryland Court of Appeals said

3 that an election is not free if voters cannot cast a ballot. I

4 want to digress a little bit in response.

5 Mr. Figinski mentioned the Maryland Declaration of

6 Rights Article 7. And he pointed out that it had never been

7 briefed by anybody. This is our objection to going to the

8 final merits. He has cited four other Court of Appeals cases

9 that we have not even had time to read. He cited a Declaration

10 of Rights provision that was never mentioned in his complaint,

11 in his initial memoranda, in his memoranda yesterday. And we

12 are being asked to litigate important constitutional rights on

13 the fly.

14 Article 1, Section 1 --

15 THE COURT: IT's 12:05. Would you like to take a

16 break for lunch? That would give you a chance to read those

17 cases. I mean, we obviously are not going to finish before

18 lunch. So I'm happy to --

19 MR. BERMAN: I would prefer to go on, Your Honor.

20 Reading four cases plus trying to research the Declaration of

21 Rights and do the various arguments, it's not going to help us

22 to be able to take that break.

23 THE COURT: Okay.

24 MR. BERMAN: I appreciate it, but --

25 THE COURT: Well, if there is something else we


gaw 67

1 can do to help you, let me know. While we are on the

2 subject, what do you all want to do with -- how long do you

3 want to go?

4 MR. BERMAN: I would appreciate it if we could

5 finish the Article 1, Section 1, argument.

6 THE COURT: Okay.

7 MR. BERMAN: If Your Honor wants to break for lunch

8 at that point, that would be fine. I don't --

9 THE COURT: Okay. We'll do that.

10 MR. BERMAN: I don't think there is a lot to

11 belabor. I would hope that with another hour of argument --

12 MR. FIGINSKI: Oh, oh. If we go for another hour on

13 this one, Your Honor, it will even put me to sleep.

14 MR. BERMAN: Not on this provision, an hour on the

15 rest of the --

16 THE COURT: Well, we'll go. Let's hear your

17 argument. Then we will break for lunch.

18 MR. BERMAN: Article 1, Section 1, the parties'

19 briefs passed like ships in the night, Your Honor. First of

20 all, Mr. Figinski agrees that the Court of Appeals has held,

21 the Hill case, it held that the provision does not apply to

22 primary elections. That's the law. That's what respectfully

23 the Court, we submit, is bound to apply, not a dissent, not a

24 concurrence.

25 Article 1, Section 1, was designed to avoid dual


gaw 68

1 voting and colonization and to ensure voters got the correct

2 options. Now we would like to, since the parties do pass like

3 ships in the night, we would like to start off by looking at

4 the language. All elections shall be by ballot. Obviously,

5 that's not at issue. Every citizen of the United States of the

6 age of 18 years or upwards, who is a resident of the state as

7 of the time for the closing of registration next preceding the

8 elections, shall be entitled to vote in the ward or election

9 district in which he resides at all elections to be held in the

10 state. And then it goes on to say if you are once entitled to

11 vote, you are continued, your right continues.

12 So it says "Every citizen of the U.S., who is 18 or

13 older, who is a resident of the state at the specified time,"

14 those are the qualifications, "shall be entitled to vote,

15 entitled, not required, "entitled to vote in the ward or

16 election district in which he resides."

17 Now, we focus on the word entitled, that votes are

18 entitled to vote in their district. The framers of the

19 Constitution certainly knew how to say voters are required to

20 vote in their district. And they didn't say that.

21 Early voting does nothing more than give voters who

22 choose to do so the right to waive the entitlement. Plaintiffs

23 respectfully in their trial memorandum go off on a tangent.

24 And they take us to task for not responding to the Maryland

25 Green Party and other cases on qualifications. And the reason


gaw 69

1 we didn't respond is because they're passing like ships in the

2 night. They equate entitlement to a qualification that can

3 neither be expanded or curtailed.

4 Respectfully, they are wrong. In a case they cited,

5 Kemp versus Owen, and subsequently in Sable versus Baltimore

6 City, 342 Md. 586, at page 598, the Court of Appeals listed the

7 qualifications for voting. And they described resident of

8 Maryland, 18 years, U.S. citizen, registered to vote. And they

9 didn't, they did not, list entitled to vote in your ward or

10 district as a qualification to vote.

11 The early voting law does not modify qualifications

12 in any way or permit unqualified people to vote. If Your Honor

13 is a citizen, 18 years of age, and a resident, and so forth,

14 you can vote on November 7 or November 5 or October 31. And if

15 Your Honor was not 18 or not a citizen or not a resident, you

16 couldn't vote. And the early voting laws don't change the

17 qualifications.

18 In fact, in their memorandum plaintiffs admit that

19 the poll procedure during early voting is exactly the same as

20 the poll procedure on election day. The same qualification

21 process, the same ballot style. They themselves admit

22 everything is done the same at early voting.

23 The entitlement language was intended by the framers

24 to ensure a convenience polling place. Imagine, particularly

25 in the 1800s, telling a Severna Park resident that they had to


gaw 70

1 vote in Allegheny County. So I started off saying in Jackson

2 an election is not free if voters can't cast a ballot. So what

3 Article 1, Section 1, was done is it's saying, look, Severna

4 Park resident, we can't drag you to Allegheny County and defeat

5 your right to vote. You have a right to vote in your ward or

6 district. You're entitled to do it.

7 But there is nothing anywhere in the Constitution or

8 in any case subsequently decided that said the voter can't

9 waive that right, the voter can't be given a more convenient

10 option. Assume a voter, who resides in Eastern Howard County

11 but works in Western Howard County, why shouldn't that voter

12 under Article 1, Section 1, be entitled to the voter's

13 entitlement and vote early at a more convenient polling place?

14 Assume a voter who has two residences, assume any one of the

15 complicated living arrangements that occur today. Article 1 is

16 simply an entitlement. It can be waived.

17 Now plaintiffs rely on the Latin maxim exclusio

18 unis. And I remember a law school professor who said that he

19 was always amazed at the ability of a Latin phrase to

20 substitute for sound reasoning. Saying that you are entitled

21 to vote in your ward or district does not mean that you can't

22 be offered an option to vote somewhere else. Exclusio unis

23 never got to that kind of an argument. We now have electronic

24 poll booths, electronic voting, and it becomes possible through

25 technology to do these things.


gaw 71

1 Even without the technology, Article 1 does not

2 prohibit the legislature from making voting more convenient by

3 offering voters an option.


5 MR. FIGINSKI: Your Honor, very briefly. I am going

6 to call your attention to Kemp versus Owens, a case which we

7 cited at the very outset of our filings, and a case of

8 Southerland versus whoever, another case. They are both very

9 old case. They are both very short cases. They both discuss

10 qualifications for voting. And they both discuss Article 1,

11 Section 1.

12 THE COURT: I have Kemp. What is the other one?

13 MR. FIGINSKI: Southerland, Your Honor. I will give

14 you the whole -- let me finish with Kemp, and then I will give

15 you Southerland, if you don't mind.

16 Kemp versus Owens was decided in 1892 in 76 Md. 235,

17 24 Atl. 606. Unfortunately, the App pages, I only have are the

18 Atl.App. pages, Your Honor.

19 THE COURT: I have it.

20 MR. FIGINSKI: Okay. There are two judges who

21 wrote, Judge McSherry apparently for the majority and Judge

22 Bryant who apparently concurred. I'm not sure. But in the

23 second paragraph of the Kemp opinion, Judge McSherry writes,

24 "Section 1 of Article 1 of the Constitutes prescribes the

25 qualifications of a voter." They can talk all they want. The


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1 case says it prescribes the qualifications.

2 It goes on to talk about the language. And it

3 concludes that, as a consequence of the language that follows,

4 you cannot lawfully vote in a ward or election district in

5 which he does not reside.

6 Judge Bryant in concurrence, in this second

7 paragraph of his concurrence, adds "We cannot add anything to

8 the qualifications described in the Constitution. Neither can

9 we take anything away from that."

10 I urge the Court -- I know the Court has probably

11 already read this. I shouldn't say "urge the Court." I know

12 the Court has already it. I will consider the case, I believe

13 it directly stands for the proposition that we cited it for.

14 And it was cited not on Friday. It was cited in the Friday's

15 discussion, but it has been with us in our submissions since

16 July 17.

17 Now the Southerland case, Your Honor, unfortunately,

18 among this paper I brought with me, I didn't bring it. But its

19 citation is 74 Md. 326. And that was the case in which I think

20 really gives lie to what they are talking about. Here's a

21 gentleman who lived in Culvert County, was registered in

22 Culvert County, and he went to the District of Columbia to work

23 in the Navy Yard. He never gave up his registration, but he

24 was living in the District of Columbia. So he comes back and

25 he wants to vote. And the Court of Appeals of Maryland back in


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1 1891 says no.

2 I think that supports our proposition, just like

3 Kemp versus Owens does. And I would urge the Court to hold

4 that Article 1, Section 1, is not merely a suggestion or an

5 entitlement, but it is a specific statement of where a voter is

6 qualified to vote. And that voter is qualified to vote in the

7 place where he resides and where he is registered, not

8 elsewhere.


10 MR. BERMAN: Your Honor, may I be heard very

11 briefly?


13 MR. BERMAN: Thank you. Your Honor, first of all,

14 the Kemp case and the Southerland case are discussed at

15 footnote 20 of our brief. The Kemp case is cited by the Blount

16 case that Mr. Figinski has repeatedly mentioned, which is

17 reported at 247 Md.

18 In Blount, the Court of Appeals describes Kemp as "a

19 voter registration case." That's exactly the way we described

20 it in footnote 20, where we say it stands for the entirely

21 unremarkable proposition that a voter cannot lawfully vote

22 where he or she is not registered to vote. That's what the

23 facts of the case were about. That's what the Court of Appeals

24 has said it's about. And that's not what early voting is

25 about. Early voters will be permitted to vote a ballot that


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1 represents their ward and their district.


3 THE COURT: All right. Why don't we take a

4 recess until 1:30? And then we will hear the rest of the

5 arguments.

6 MR. FIGINSKI: 1:30, Your Honor?

7 THE COURT: Yes, sir.

8 MR. FIGINSKI: Thank you very much.

9 MR. BERMAN: May we leave our materials in the

10 courtroom?

11 THE COURT: You certainly may. And the courtroom

12 will be locked up. So --


14 (Whereupon, a luncheon recess was taken.)

15

16

17

18

19

20

21

22

23

24

25


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1 A F T E R N O O N S E S S I O N


3 THE COURT: Have a seat, everyone.

4 We are back on the record in the Capozzi versus

5 State of Maryland and Linda Lamone, et al., C-2006-115807.

6 Counsel, identify yourselves, please.

7 MR. WEST: Yes, Your Honor. Christopher West and

8 Albert Figinski on behalf of the plaintiffs.

9 MR. BROCKMAN: Your Honor, Will Brockman and Michael

10 Berman for the defendants.

11 THE COURT: Okay. Are we ready to resume?

12 MR. WEST: I think next up in our agenda, Your

13 Honor, is the discussion of Articles 15 and 17 of the State

14 Constitution.

15 THE COURT: Okay.

16 MR. WEST: So I am going to handle that on our side.

17 These two articles, Article 15, Section 7, and Article 17,

18 Sections 1 and 2, are really very similar. They both hold that

19 all general elections shall be held on the Tuesday after the

20 first Monday in the month of November, which we might as well

21 just refer to from now on as election day.

22 The second of the two articles, Article 17, Sections

23 1 and 2, is only slightly different. It said the general

24 elections for state and county officers shall be held on

25 election day.


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1 This year, for the first time in the history of the

2 State of Maryland, thanks to the early voting statutes, the

3 voting will be held not only on --

4 THE COURT: Go ahead.

5 MR. WEST: -- will be held not only on election day,

6 but will start on the Tuesday preceding election day and then

7 continuing on the Wednesday, the next day, the following day

8 Thursday, the following day Friday, the following day Saturday,

9 and then finally conclude on election day.

10 In the State's materials that have been attached to

11 the complaint as a part of Exhibit E, the guidelines for early

12 voting suggest that an estimated 20 percent of the votes will

13 be cast not on election days but on these days preceding

14 election day. It is the argument of the plaintiffs that

15 election, therefore, this year will not be held on election

16 day, but rather will be held on six days, concluding with

17 election day, starting with the preceding Tuesday, in

18 contradiction to the State Constitution.

19 The defendants, by contrast, are arguing that the

20 election is held on election day, because they argue the

21 election should be deemed to be held after all the voters have

22 gone home, at the time that the votes are tabulated.

23 The standards for interpreting the Constitution have

24 been discussed in a number of Maryland Court of Appeals

25 decisions. The Court of Appeals has indicated that the same


gaw 77

1 standard should be used when interpreting the State

2 Constitution as are used when interpreting statutes. The Court

3 has held that the first thing to do is to look at the normal,

4 plain meaning of the language of the Constitution. And if that

5 is clear and unambiguous, there is no need to look any further.

6 It is our contention that the definitions of the words

7 "election" and "held" are sufficiently clear and unambiguous

8 that there is no need to look beyond the plain language of the

9 Constitution when deciding what those two sections mean.

10 The Norris case, which we cite or discuss in our

11 brief, in our memorandum, is particularly illuminating. That

12 case states, and I am going to quote, "Since constitutions are

13 the basic and organic law and are meant to be known and

14 understood by all the people, the words used should be given

15 the meaning which would be given to them in common and ordinary

16 usage by the average man in interpreting them in relation to

17 everyday offices."

18 So there is no need to become exotic or complicated

19 or tricky in trying to define or interpret the meaning of the

20 State Constitution. The words election and held should be

21 given their normal meanings. These are words that are used in

22 everyday speech by average people. So we are not talking about

23 abstruse legal terms here. We are talking about terms which

24 are used on the streets daily. They are common and ordinary

25 words.


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1 In our memorandum, we cite a number of definitions

2 of both the word election and the word held. The word held is

3 so simple we have cited fewer definitions for that word,

4 because over and over the word held is defined as schedule and

5 assemble or meet, as in some classes were held in the evening

6 or to assemble at, for, and conduct the activity of, in another

7 case.

8 The word election has been fairly consistent in its

9 definition for centuries. We found the Webster's Dictionary of

10 1828, which preceded the State Constitution in which Article

11 15, Section 7, was first adopted and really has not changed

12 since then, the 1867 Constitution. The Webster's Dictionary of

13 1828 defines the word election as the act of choosing a person

14 to fill an office or employment by any manifestation of

15 preference as by ballot, uplifted hands, or viva voce, as the

16 election of a president.

17 Note the emphasis there on the act of choice by the

18 people as the central act of an election, of any election.

19 Note also the fact that there is no mention of ministerial acts

20 conducted by public employees in setting the election up or

21 breaking it down after the election is over with.

22 Webster's Revised Unabridged Dictionary in 1913,

23 obviously a later decedent of the earlier one, defines the term

24 election in almost the same words, not quite, but close, as the

25 act of choosing a person to fill an office or to membership in


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1 a society, as by ballot, uplifted hands, or viva voci, as the

2 election of a president or mayor.

3 Again, the emphasis is on the actions of the

4 electorate in making the choice. Dictionaries that are in use

5 today also emphasize the central role of the electorate in any

6 election. Webster's Third New International Dictionary

7 Unabridged defines election as the act or process of choosing a

8 person for office, position, or membership by voting. And then

9 there are some other encyclopedias and dictionaries which

10 contain similar definitions, all involving the idea of choice

11 and vote.

12 So it is our contention that by the normal, plain

13 meaning of the words "election" and "held," an election should

14 be deemed to be held when voters convene or assemble in order

15 to vote and choose a person to fill an office.

16 I note that a case we did not cite but I found in

17 between yesterday and today called Cohen versus Governor of

18 Maryland, 252 Md. 5, a 1969 decision. The Maryland Court of

19 Appeals looked at the words "general election." And the Court

20 held, in our opinion, the words general election used in a

21 different section of the Constitution are clear and

22 unambiguous. And it is our contention that if the Court of

23 Appeals could find the words "general election" are clear and

24 unambiguous, certainly this Court and the Maryland Court of

25 Appeals ultimately should be capable of finding the word


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1 "election" to be clear and unambiguous.

2 The defendants disagree. They fail to cite any

3 dictionary as a source. But they contend that when an election

4 is held -- when the votes are tabulated, I would suggest that

5 nothing in the normal definitions of the words "election" or

6 "held" suggest that a general election should be deemed to be

7 held when the votes are tabulated. That is not the common,

8 normal definition of the word.

9 For example, I just -- the ABA National Convention

10 is right now being held in Hawaii. It started the middle of

11 last week, and it concludes this coming Friday. I'm sure that

12 if the literature announcing the convention announced that the

13 convention was going to be held on Friday, not many people

14 would have gone to Hawaii, because they would have thought it

15 was a single day.

16 The definition of held for an event such as an

17 election or a convention means when does it start and when does

18 it end. So in this case, for the first time in this history of

19 Maryland, the election is not being held on election day,

20 because the voting is not occurring on election day. Rather,

21 the election is being held starting a week before election day,

22 when the voting starts, and will conclude on election day.

23 The defendants' argument that the election is held

24 when the votes are tabulating just doesn't stand up in terms of

25 history. As noted earlier, this language that is in the


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1 Constitution today has been there since the 1867 Constitution

2 was adopted back in 1867. So the language has applied and

3 would necessarily have applied to elections conducted in the

4 latter half of the 19th century even as it applies to elections

5 held today.

6 In the latter half of the 19th century -- well,

7 let's start with today. Today, of course, we have electronic

8 voting machines and we have cars. And so the rules governing

9 the elections contained in COMAR provide that after the

10 election concludes on election night, the election judges in

11 the precincts are to run everything back to the county election

12 boards, and the canvas of the votes starts as soon as the

13 material starts to arrive back that night. So that by the end

14 of that evening, unofficial results and incomplete results are

15 released to members of the press. And they are published in

16 the newspapers the next day.

17 When I say incomplete, the election COMAR also

18 establishes that certain elements of the election are not

19 completed on election night. The write-in votes aren't

20 tabulated. The absentee votes aren't tabulated. The

21 provisional votes aren't tabulated. All that's available on

22 election night are the incomplete results off of the machines,

23 the accuracy of which remains open to questioning at later

24 points in the process.

25 But in 1867, when the Constitution was adopted and


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1 the same language was adopted that we are interpreting today,

2 there were no automobiles. And the ballots weren't cast on the

3 machine, they were cast by hand, by writing on paper ballots

4 and putting them in boxes. In light of those realities, the

5 applicable state election statute as late as 1888 provided that

6 the judges of the elections shall within ten days after the

7 election all meet at the usual place of holding, the circuit

8 court for each county, and shall cast up the whole of all the

9 districts or precincts.

10 So the tabulation back in the latter half of the

11 19th century simply could not occur on election night. It was

12 not physically possible for people to transport election

13 materials after 11:00 in the evening from distant corners of a

14 county all the way to the county seat by horseback. Even as

15 late as 1904 with early automobiles beginning to run along the

16 roads of the state, Article 33, Section 77 through 80, in that

17 era provided that the election boards would meet two days after

18 the election; in other words, on Thursday of election week; and

19 would tabulate the votes then.

20 So if the Court were to adopt the defendants'

21 proffered definition of the word election as occurring when the

22 votes are tabulated, it would in effect retroactively conclude

23 that all of Maryland's elections back during those decades were

24 unconstitutional, because they all occurred after the day

25 specified in the State Constitution when the election must


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1 occur.

2 Even today, it's strange that they would choose the

3 tabulation of the vote on election night. As I indicated

4 earlier, that tabulation is these done by running computer

5 memory cards through machines and coming up with numbers. And

6 those are only the numbers of the votes actually cast on the

7 machines. They don't include the write-in votes. They don't

8 include the absentee votes. And they don't include the

9 provisional votes. The absentee vote count doesn't start until

10 two days after the election on Thursday of election week. And

11 as we saw in the Sauerbrey election back in 1994, it can run on

12 several days if there's a hotly contested and very close

13 election.

14 The count of provisional ballots by regulation isn't

15 supposed to start until the second Friday -- is that right, or

16 is it the first Friday? I think it's the first Friday after

17 the election. Maybe it's the second Friday. Maybe it's the

18 second Friday after the election. And on the second Friday

19 after the election, that's also the day that the second

20 absentee vote count is done. In other words, ballots that come

21 in that are postmarked property but haven't arrived by two days

22 after the election date are still countable and are counted the

23 second Friday after election day.

24 So there is no certified count, no certified vote

25 count, issued by the county election boards until nearly two


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1 weeks after election day. And from that point on, COMAR goes

2 on and on and talks about how those counts go to the state

3 level, and then the State Board of Elections does certain

4 things, and ultimately the election is certified.

5 But to choose the unofficial, incomplete tabulation

6 that occurs on election night and for the defendants to argue

7 that that constitutes "holding the election" doesn't make any

8 sense. And it certainly is not the definition of holding an

9 election which an average man on the street would volunteer, if

10 you asked him when the election was being held.

11 The defendants don't cite any Maryland case in

12 support of their argument that the election is held when the

13 vote tabulation occurs. And they don't cite any dictionary

14 definitions to suggest that the election is held when the vote

15 tabulation occurs. Rather, they cite a couple of federal

16 decisions interpreting federal election law which was adopted

17 subsequently to the adoption of Maryland's Constitution of

18 1867.

19 Now there is a Maryland case, the Dua decision,

20 which we cited to the Court, Dua versus Comcast Cable, 370 Md.

21 604, which indicates that when the U.S. Constitution has a

22 provision which is identical to a provision in the Maryland

23 Constitution, Maryland can -- Maryland Courts do not have to

24 follow the interpretation of the U.S. Constitution adopted by

25 the U.S. Courts, that the U.S. Court's rationale may be


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1 persuasive, but not binding on the Maryland Courts.

2 That certainly would doubly be the case when what is

3 being interpreted by the federal courts is not the U.S.

4 Constitution, but a statute. And even more so when the statute

5 in question was adopted by the U.S. Congress subsequently to

6 the adoption of the Maryland constitutional language, which is

7 the subject of the interpretation.

8 The two cases which are cited by the defendants are

9 Voting Integrity Project versus Bomer and Millsaps versus

10 Thompson. The Bomer case was out of Texas. The Thompson case

11 was out of Tennessee. In each of these cases, the early voting

12 was described as a form of absentee voting. And so from the

13 outset, the Courts involved in interpreting these two decisions

14 were looking at a form of absentee voting and trying to decide

15 whether this form of absentee voting should be ruled

16 unconstitutional, as in conflict with the federal statute.

17 They ran into a problem. The federal statute, as

18 enacted many decades ago, contains no exception for absentee

19 voting at all. So the Courts realized quickly that if they

20 concluded that early voting, which was an element of absentee

21 voting, violated the statute, they would thereby be ruling that

22 all absentee voting violated the federal statute. And they

23 realized that all 50 states have absentee voting, and therefore

24 necessarily they would be rendering a decision that absentee

25 voting, as it is known and has been known for many decades in


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1 every state in the country, is unconstitutional.

2 They noted that the Congress on a number of

3 occasions in recent years has passed legislation ordering that

4 certain things be done with respect to the conduct of absentee

5 voting. And therefore, they concluded that the Congress could

6 not possibly have meant, when it adopted the federal statute,

7 that absentee voting was unconstitutional.

8 In light of that fact, they sought an opportunity or

9 a rationale for ruling that the early voting, which, as I say,

10 in both Tennessee and Texas, unlike in Maryland, is defined as

11 an aspect of absentee voting was indeed constitutional. They

12 seized on a Supreme Court case decided back in the 1990s

13 entitled Foster versus Love. The Foster versus Love case

14 really has nothing to do with this case and no relevance to the

15 case except in that it supplied a rationale to Bomer and

16 Millsap to excuse early voting in those cases.

17 In Foster, it grew out of a situation in Louisiana.

18 Louisiana had an all-party primary earlier than the election

19 day. And if a candidate won 50 percent of the vote in the all-

20 county primary, that candidate was declared elected. And

21 apparently more often than not that's exactly what happened.

22 One candidate won more than 50 percent of the vote in the

23 primary and was declared elected prior to election day.

24 Foster concluded that that didn't pass muster under

25 the federal statute, that under the federal statute everything


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1 had to be at an end by election day and could not end before

2 election day. So the Foster Court held that you can't have an

3 election of federal officers which ends prior to election day.

4 This holding provided Bomer and Millsaps a way out

5 of their conundrum. They proudly claimed to follow the Supreme

6 Court case, but they insistently refused to look at definitions

7 of the term election in so doing. For that reason, the Bomer

8 case and the Thompson case simply should not be viewed as

9 either binding precedent or persuasive precedent by this Court.

10 Because the Maryland Court of Appeals over and over again has

11 illustrated how our constitution should be interpreted. And

12 that is, you look at the language of the constitution first and

13 foremost. You take the plain and common meaning of the

14 language. And if that answers the question, you go no further.

15 In both the Millsaps and the Thompson cases, or,

16 rather, the Bomer cases, the Courts did not look at the

17 language. They did not look at the definitions. They made an

18 end run around those. And that is inconsistent with how this

19 state handles interpreting its constitution.

20 So for all those reasons, our contention is that the

21 language in the State Constitution is plain and simple. The

22 words election and held are common words used every day by

23 ordinarily people. This Court ought to adopt the definition of

24 those words used by average people on the streets of Maryland

25 when looking at their constitution. And by that standard, an


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1 election this fall which purports to start a week before the

2 election and the voting would then continue on the same

3 machines that the voting is engaged in on election day, in the

4 same way, that voting, which starts on the Tuesday beforehand

5 and continues on Wednesday, Thursday, Friday, and Saturday, and

6 finally concludes on those machines on election day, should be

7 ruled to be unconstitutional as inconsistent with Article 15,

8 Section 7, and Article 17, Sections 1 and 2.

9 THE COURT: Counsel?

10 MR. BERMAN: Thank you, Your Honor. Again, under

11 the Court of Appeals Jackson decision, an election is not free

12 if voters can't cast a ballot. Ms. Lucas says she has trouble

13 casting a ballot on election day. Section 1-201, subsection 5,

14 of the election article says, "Citizen convenience is

15 emphasized in all aspects of the election process."

16 Let's look at the two constitutional provisions that

17 Mr. West referenced. The first is the Fewer Election Amendment

18 of Article 17. That simply doesn't apply to primaries. There

19 has been no argument to the contrary. If it applied to

20 primaries, of course primaries would have to be held on Tuesday

21 at the same time as the general election. So as to primaries,

22 their early voting challenge fails.

23 They also missed the purpose of the Fewer Election

24 Amendment. The purpose of the Fewer Election Amendment is to

25 have fewer elections so that there is less voter inconvenience.


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1 It is to increase voter inconvenience. Under the words and

2 purpose of the Fewer Election Amendment, early voting is

3 certainly permissible. Early voting furthers voter

4 convenience. It is not create another election. There is no

5 violation of the Fewer Elections Amendment.

6 So the parties really join issue on what curiously

7 has come up to be the last portion of the argument, Article 15,

8 Section 7. That provides that elections shall be held on

9 Tuesday. The purposes were, like the Fewer Election Amendment,

10 to limit the number of elections and avoid presidential

11 politics interfering with state gubernatorial races.

12 We say that the issue is "what is an election," much

13 like the Judge Friendly decision of what is chicken, is it a

14 stewing chicken, a fowl, et cetera. The plaintiffs say the

15 Supreme Court, the Fifth Circuit, the Sixth Circuit, the Ninth

16 Circuit, and the other state legislatures are all wrong. they

17 claim that the word election has a common, ordinary, everyday

18 meaning.

19 If so, why do four appellate courts, including the

20 United States Supreme Court, and at least one dictionary

21 provide a meaning that differs from their definition? They

22 take us to task, and they take the Fifth Circuit to task, for

23 not referring to a dictionary. If Your Honor refers to page 29

24 of our memorandum, we discuss, I'm sorry, the Sixth Circuit

25 case. And we say, "The Court referred to the definition of


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1 Noah Webster and American Dictionary of the English Language

2 defining election as 'the act of choosing a person to fill an

3 office.'"

4 Under their rule, what happens? If the elections

5 are to be held on Tuesday, does everything have to be done on

6 Tuesday? Does specimen ballots have to be mailed on Tuesday?

7 Does registration have to occur on Tuesday? Does everything

8 have to occur on Tuesday? If not, why not? What, under their

9 rule, what can occur on a different day? If elections have to

10 occur on Tuesday, does the whole ball of wax get compressed

11 into one day?

12 The word election or an election is a process. At

13 least since the modern institution of the ballot, no election

14 has opened and closed on one day. And it's curious, while they

15 take us to task for citing the Fifth Circuit, Sixth Circuit,

16 Ninth Circuit, and Supreme Court cases, they are unable to find

17 one case in 200 years of jurisprudence that supports them, not

18 one case.

19 The Supreme Court, we would submit, is an authority

20 of slightly greater weight than a dictionary. And it held that

21 an election is more than casting a ballot. It rejected their

22 position. Every Court, every Court that has considered the

23 definition of an election has rejected their position.

24 A ballot must be processed and counted or it has no

25 meaning. I raised my tsunami argument early on. And I said if


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1 we have four days of early voting and then a tsunami stops the

2 electoral process and the State Board saves those 15 percent of

3 the early votes, would anyone contend that that is an election?

4 Of course not. They haven't been able to respond to it,

5 because their definition and their analysis doesn't let them

6 respond.

7 And I said tsunami, but you could look at Katrina.

8 Katrina hit New Orleans when there was an election. On

9 September 11, we know that there were polling places in use in

10 the World Trade Center. It's not an idle hypothetical.

11 In this context, the definition has been held to be

12 the time that voting closes and counting and tabulating

13 commences. The process of turning your vote into a final

14 choice is an election. In Foster, the Supreme Court said the

15 combined acts of voters and public officials to make a final

16 selection of an office holder is what an election is.

17 All the Courts that have decided it agree. There is

18 no court decision to the contrary. And the plaintiffs rely on

19 dictionaries. Now they came in with their dictionaries. We

20 got it about 3:00 or 4:00 o'clock yesterday afternoon. And

21 again, I'm not criticizing them. This has been a rush thing.

22 And they did the best they could to get it to us early.

23 Between 3:00 or 4:00 o'clock yesterday afternoon and this

24 morning, I haven't been able to go find the 1868 dictionaries

25 that they were able to find. But I did have time last night to


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1 check the online dictionary that they cited. And they gave

2 Your Honor one definition from that dictionary. They didn't

3 give Your Honor the other three definitions from that

4 dictionary. And the fourth definition in that dictionary of

5 election was "the process of being chosen."

6 That's exactly what the Supreme Court said in

7 Foster. The dictionary that they cite supports the Foster

8 definition, the Fifth Circuit definition, the Sixth Circuit

9 definition, the Ninth Circuit definition, the General

10 Assembly's definition, and the definition of the nine other

11 states that have similar constitutional provisions on early

12 voting.

13 To resolve this case, Your Honor, the Court need to

14 decide only a narrow, very narrow, very, very narrow issue on

15 this point. The Court need only conclude that an election is

16 more than the act of some, but not all, voters casting a

17 ballot. If the Court concludes that an election is more than

18 the act of some, but not all, voters, maybe 15 or 20 percent,

19 casting a ballot early, there is no violation of Article 15,

20 Section 7. That would be consistent with its words. It would

21 be consistent with the case law. It would be consistent with

22 the purpose of the Constitution. It would be consistent with

23 the purpose of the election code, to make elections more

24 convenient.

25 If the four days of voting before the tsunami are


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1 not an election, plaintiffs lose. And we would submit that an

2 election is more than the act of some people casting a ballot.

3 The plaintiffs do misperceive our position. We

4 never said that tabulation is the key to when an election

5 occurs. We say it is at the point of transition between the

6 close of casting ballots and the commencement of tabulating,

7 processing, and selecting the final candidate.

8 Now they strive mightily for pages of their trial

9 memorandum to distinguish the Fifth Circuit case. And quite

10 frankly, if the judges in the Fifth Circuit and Sixth Circuit

11 and Ninth Circuit saw a conundrum, I didn't see it reading

12 their opinions. And I think the plaintiffs' effort to

13 distinguish them is not well founded.

14 But the plaintiffs do make an interesting argument.

15 They say, well, the courts looked at early voting as a form of

16 absentee voting. And the plaintiffs were making a form over

17 substance argument, Your Honor. And a form over substance

18 argument should not prevail on something that is as important

19 as the franchise. As I understand the plaintiffs' argument, it

20 is, if the General Assembly had not called this early voting,

21 if they had uttered magic words like 16 other states and called

22 it no excuse in person absentee voting, there would be no

23 violation of Article 15, Section 7, because Article 1, Section

24 3, says the General Assembly controls the time, manner, and

25 place of absentee voting, if a voter is "unable to vote on


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1 election day." You don't have to be absentee, just unable to

2 vote.

3 So the plaintiffs' argument, in attempting to

4 distinguish the Fifth, Sixth, Nine Circuit and Supreme Court

5 cases, is that while most cases the law said early voting is

6 absentee. Is a law unconstitutional because the General

7 Assembly called it early voting instead of absentee voting? I

8 would hardly suggest that the Constitution places that type of

9 a burden on the General Assembly. There is no magic language

10 requirement.

11 THE COURT: Let me ask you something. Mr. Figinski,

12 I think, said earlier that he challenged anyone to look at the

13 language of the statute, titles, headings, body, to find any

14 reference to the phrase that you use for early voting. I

15 forget exactly what it was.

16 MR. BERMAN: Absentee. That is correct. The

17 word --

18 THE COURT: Absentee voting.

19 MR. BERMAN: The word absentee is not in there, nor

20 do we think from a constitutional dimension --

21 THE COURT: You used another term.

22 MR. BERMAN: I used no excuse in person --

23 THE COURT: No excuse.

24 MR. BERMAN: Right.

25 MR. FIGINSKI: No excuse absentee voting.


gaw 95

1 MR. BERMAN: No excuse just means that under the old

2 versions of absentee voting, you had to give a reason to get an

3 absentee ballot: I am in military service, I won't be there on

4 November 7; I'm in the hospital, I can't get there. You had to

5 give an excuse.

6 The legislature in the most recent session amended

7 the absentee ballot to provide for no excuse absentee voting.

8 You can get an absentee ballot without giving an excuse. You

9 just come in and say "I want one." That's what the no excuse

10 language is.

11 So many states have called their early voting

12 programs no excuse in person absentee voting. And they have no

13 excuse mail absentee voting. Now those words are not used in

14 the early voting statutes. We concede that Mr. Figinski is

15 factually correct. That concession is irrelevant.

16 Mr. Figinski makes two arguments. One argument is

17 that unless the General Assembly put the right magic words in

18 the preamble to the bill, the bill is unconstitutional. That's

19 not the constitutional inquiry. The inquiry is, did the

20 General Assembly have the power to do it?

21 Secondly, he argues, that if they had put early

22 voting in, they would violate the constitutional requirement

23 that a bill only address one subject, because, he argues, that

24 would be addressing two subjects, early voting and absentee

25 voting. The rebuttal is Mr. West's very own argument that many


gaw 96

1 states call it early and absentee voting. It's not two

2 subjects. It's one and the same.

3 Under Article 1, Section 3, of the Maryland

4 Constitution, a voter can vote on a day other than election

5 day, as prescribed by the General Assembly, if the voter is

6 either absent or unable to vote.

7 THE COURT: Well, let me ask you this, are you

8 contending that this legislation that is being challenged by

9 Mr. Figinski was enacted in accordance with the constitutional

10 authority given on, is it, Article 1, Section 3, to set up a

11 process for absentee voting? Yes or no?

12 MR. BERMAN: I am contending, Your Honor, that

13 Article 1, Section 3, is broad enough to cover this statute.

14 It's broad enough to confer on the General Assembly that power,

15 regardless of whether, in the mind of the legislator who voted

16 on it, they were intending to do that. I'm arguing that the

17 three provisions that they cite do not bar this statute and

18 that Article 1, Section 3, is broad enough to authorize it.

19 THE COURT: So you're saying that the Constitution

20 Article 1, Section 3, gave the General Assembly the authority

21 to enact absentee balloting rules, processes. But I guess then

22 the question is, is that what this legislation in fact does?

23 MR. BERMAN: Yes, Your Honor. It does -- if the

24 Court will bear with me one moment.

25 (Pause.)


gaw 97

1 Let me go back, if I can, to Article 1, Section 3.

2 "The General Assembly of Maryland shall have the power to

3 provide by suitable enactment for voting by qualified voters of

4 the State of Maryland, who are absent at the time of any

5 election in which they are entitled to vote, and for voting by

6 other qualified voters who are unable to vote personally, and

7 for the manner in which, and the time and place at which such

8 absent voters may vote, and for the canvas and return of their

9 votes."

10 That's Article 1, Section 3. So it said to the

11 General Assembly: you can prescribe law specifying the time

12 and place at which people who are unable to vote personally may

13 vote. What does early voting do? It says to the early voter:

14 You have an option.

15 On the facts before Your Honor, Ms. Lucas says, "I

16 work shift work. And I have four kids. And I have a 90-minute

17 bus commute. I have a hard time getting to the polls. So I

18 use early voting." She is unable, within the terms of the

19 Constitution, unable to vote personally. And the legislature

20 has the right to prescribe the manner in which and the time and

21 place she may vote. And that is exactly what the early voting

22 laws do.

23 THE COURT: Well, let me ask you this, if that's

24 what the legislature intended to do, why isn't it spelled out

25 in the language somewhere?


gaw 98

1 MR. BERMAN: Your Honor, I would submit for a

2 constitutional inquiry it makes no difference what the

3 legislature intended, whether they intended -- if the

4 legislature -- let's say hypothetically that the legislature

5 had intended to act under Article 1, Section 1. And let's say,

6 for argument's sake, they failed. But if Article 1, Section 3,

7 provided them with the power to do it, their mistake as to the

8 source of their authority does not invalidate the law. The law

9 is valid under the constitution. There is nothing that says

10 that the legislature must refer to the correct constitutional

11 provision in order for their enactment to be sustained.

12 I cannot stand here before Your Honor and say when

13 delegate one or senator two voted, they had in mind Article 1,

14 Section 3. And the reason I can't is we haven't surveyed them

15 because it's irrelevant. Because if Section 3 provides the

16 power, it provides the power.

17 I hope I have answered Your Honor's questions. I

18 have nothing further on the Fewer Voting Amendment or the

19 Tuesday provisions.

20 Your Honor, I am not certain where the Court wishes

21 to go from here.

22 MR. WEST: Could I have a little rebuttal?

23 MR. BERMAN: Oh, certainly.

24 THE COURT: All right. He is standing up, anxious

25 to respond.


gaw 99

1 MR. WEST: Yes, Your Honor. This argument about

2 Article 1, Section 3, absentee voting has come up today for the

3 first time. It was not in prior submittals of the State,

4 excuse me, of the defendants. So we obviously haven't done a

5 lot of preparation. But there is not much preparation, I would

6 submit, necessary.

7 The first thing to do when interpreting any section

8 of the Constitution is to read its language. So, the language

9 of Article 1, Section 3, says, "The General Assembly of

10 Maryland shall have power to provide by suitable enactment for

11 voting by qualified voters of the State of Maryland who are

12 absent at the time of any election in which they are entitled

13 to vote." Clearly, voters who show up to vote at early voting

14 are not absent.

15 And it continues, "And for voting by other qualified

16 voters who are unable to vote personally." Again, voters who

17 show up for early voting are personally present at the voting

18 place and are casting their vote personally. They are not

19 absent.

20 It continues, "And for the manner in which, and the

21 time and place in which such absent voters may vote." It

22 totally deals with absent voters. Early voting voters are not

23 absent voters. By definition, they are there at the early

24 voting locations, casting ballots.

25 Secondly, the General Assembly a couple of years ago


gaw 100

1 recodified the election law. They brought order out of what

2 previously had been chaos. And Title 9 is entitled "Voting."

3 And Subtitle 3 of Title 9 is entitled "Absentee Voting." All

4 of the absentee voting provisions in the Maryland election code

5 were gathered together in Subtitle 3 of Title 9 of the election

6 law article entitled "Absentee Voting."

7 If we take a look at the two bills passed by the

8 General Assembly, the first of them which was enacted over the

9 governor's veto, it's Chapter 5, purports to add to the

10 election law Section 10-301.1. Section 10 of the election law

11 is entitled "Polling Places." And Subtitle 1 in which this

12 statute has been inserted, excuse me, Subtitle 3, in which this

13 statute is being inserted is entitled "Polling Place

14 Procedures." The legislation in question was not added to the

15 absentee ballot section subtitle of the election law.

16 Secondly, Chapter 61 was also enacted. And the

17 relevant sections of that are being inserted by repealing and

18 reenacting and adding a section -- well, lots are being

19 repealed and reenacting and added because it's a very long

20 piece of legislation. But nothing is being done to Article 9,

21 Subtitle 3. Nothing is being repealed, reenacted, or added to

22 Article 9, Subtitle 3. I just haven't had the time, because I

23 was trying to listen to Mr. Berman, to go back and find exactly

24 where the early voting elements of this long bill are being put

25 into the election law, but it is not in the absentee ballot


gaw 101

1 section.

2 So I think that deals with the absentee ballot

3 issue.

4 A couple other things I want to talk about. First

5 of all, Ms. Lucas, this affidavit was filed by Ms. Lucas that

6 the Court was given this morning. And she has been referred to

7 several times today as one of those voters that is going to be

8 terribly hurt and prejudiced if early voting is not permitted.

9 We just talked about absentee voting. Ms. Lucas has the right,

10 along with any other voter in the State of Maryland, to apply

11 for an absentee ballot without supplying any excuse. If she

12 feels that there is any question that she might be too busy on

13 election day because of her work and her time that needs to be

14 spent working with her children, she can apply for an absentee

15 ballot and can vote by absentee ballot, as many, many, many

16 Marylanders do.

17 Thirdly, when we got the State's submission last

18 Friday, it was hard, frankly, for me to figure out exactly when

19 they were contending that the election was held. If you read

20 that portion of their memorandum, it is not clear as to exactly

21 when they contend the election is being held. I believe our

22 memorandum is quite clear, that the election is being held when

23 the voting is going on. But their memorandum is not. I

24 listened carefully to Mr. Berman, and I think that what he said

25 today was the election is held at, my scribbling, "the point of


gaw 102

1 transition between the close of voting and tabulation."

2 I would submit to the Court, again, that -- an

3 ordinary Marylander, an average Marylander asked when the

4 election is held might come up with various ways of expressing

5 it. But no average, ordinary Marylander would say, oh, the

6 election is held at the point of transition between the close

7 of voting and the tabulation. That simply is not what an

8 average person would believe. And no definition that I am

9 aware of in any dictionary holds that.

10 Finally, Mr. Berman refers to the online dictionary

11 and the fourth definition there, the process of being chosen.

12 Well, the State Constitution requires the election to be held

13 on election day. And if the process -- if the election is the

14 process of being chosen and if that has to occur on election

15 day, how do we treat the early voters, the people who voted the

16 previous Tuesday, the previous Wednesday, the previous

17 Thursday, the previous Friday, and the previous Saturday? Are

18 they not a part of the process of being chosen?

19 The State's argument is very confusing. If the

20 election is being held at the point of transition between the

21 close of voting and tabulation, it's being held -- the election

22 is held when no one is voting, after the vote is over and the

23 people have gone. And I am hard-pressed to see how in the

24 world one can try to interpret the meaning of the plain

25 language in the Maryland statute, the Maryland Constitution, to


gaw 103

1 that effect.

2 Thank you.

3 THE COURT: Okay. Anything further on that issue?

4 MR. BERMAN: Very briefly, Your Honor. Just as a

5 housekeeping matter, plaintiffs contend that we didn't raise

6 the Article 1, Section 3, argument earlier. It was raised on

7 page 51 of our memorandum where we said, "However, to the

8 extent express authorization is required, Article 1, Section 3,

9 provides it." So we have timely raised it.

10 I would submit to Your Honor that they simply,

11 number one, misunderstand the words of Article 1, Section 3.

12 And number two, they themselves err by asking Your Honor to sit

13 in the shoes of the General Assembly. Article 1, Section 3,

14 says, "The General Assembly shall have the power to provide by

15 suitable enactment for voting by qualified voters who are

16 absent at the time of any election in which they are entitled

17 to vote and for voting by other qualified voters who are unable

18 to vote personally."

19 Now, we went to great lengths in our memorandum to

20 point out that the General Assembly in Maryland has plenary

21 power. The Constitution does not grant the General Assembly

22 power. The Constitution grants the executive power. It grants

23 the Court's power. The General Assembly is the repository of

24 all power. Unlike Congress, which is a body of enumerated

25 powers, state legislatures have the power of the people, as the


gaw 104

1 people's representatives. And they may exercise that power

2 unless they are prohibited by an express constitutional

3 limitation.

4 Here what we have is Article 1, Section 3, not only

5 not prohibiting but expressly granting the General Assembly

6 that power. It's not up to anyone else to define it. It's not

7 up to anyone else to determine it. Unless they can point to a

8 constitutional limitation, it's up to the General Assembly to

9 do that. And that's what they have done in the early voting

10 statutes.

11 Where they codified the bill, who cares? That may

12 be sloppy drafting. It may be bad code revision. It may be a

13 thousand things. But it's not a constitutional violation.

14 They could --

15 THE COURT: Well, I expect this side says that if

16 they intended it to be in any way, shape, or form part of that

17 constitutionally mandated authority to set up absentee voting,

18 common sense would tell you it would be in that section.

19 MR. BERMAN: And it might be in the polling

20 procedures section, because it deals with polling procedures.

21 And it might -- and if they had goofed and they had put it in

22 the state government article, if they had the constitutional

23 power to do it, it doesn't become unconstitutional because they

24 put it in the state finance article or the health article or

25 anything else.


gaw 105

1 The Court's sole inquiry, respectfully, is, did the

2 General Assembly have the power to do it? If they were sloppy,

3 if they were unwise, if they were even ignorant, that's not an

4 inquiry for the Court. That's committed to them. I'm not

5 saying that they were. I'm just saying the fact that they

6 didn't codify it in what the plaintiffs would assert is the

7 most logical position is not a constitutional amendment.

8 THE COURT: Well, let me ask you this, do they have

9 the power to -- I mean, absentee voting is provided, at least

10 the authority to promulgate the rules and regulations provide

11 in the Constitute, do they have the authority to modify

12 absentee balloting to simply mean convenience? In other

13 words --

14 MR. BERMAN: Simply what?

15 THE COURT: To mean convenience. In other words,

16 you can be -- in other words, if I accept what you are saying

17 as correct, then wouldn't that change absentee balloting to

18 convenience balloting?

19 MR. BERMAN: In fact, Your Honor, that is what the

20 General Assembly has done. It's not before the Court now.

21 There is no excuse absentee balloting. I can get an absentee

22 ballot by going in and saying I want one. I don't have to

23 say --

24 THE COURT: Well, I think what this side is saying

25 is that the constitutional framers gave the authority to the


gaw 106

1 General Assembly to promulgate these rules for absentee

2 balloting. But I -- the language of convenience balloting

3 seems to be somewhat absent from that. I mean, I'm sure

4 Mr. Figinski will correct me, if I am misinterpreting his

5 argument.

6 MR. BERMAN: Your Honor, what they did was -- let's

7 look at the history of Article 1, Section 3. It was passed in

8 1918 as a response to, I believe, an Attorney General's opinion

9 involving soldiers in a war being able to vote. And it said

10 that the people in the military or naval service can vote by

11 absentee ballot. And at some point it said people who were

12 confined to a hospital or to a bed could vote by absentee

13 ballot. And at some point there was a reference to you had to

14 be absent from your ward or district in order to get an

15 absentee ballot.

16 The Constitution was amended to take out all those

17 restrictions. All that is left is that the legislature has the

18 power to provide for voting, if a person is absentee or unable

19 to vote. And respectfully, it leaves to the legislature the

20 power to define who is absent or unable to vote.

21 And that is what the legislature has effectively

22 done. Regardless of whether when they voted, they had that in

23 their mind, regardless of whether they cited Article 1, Section

24 3, regardless of whether they put it under Title 9 of the

25 election code, we submit that that constitutional provision


gaw 107

1 gave them the power to do what they did.

2 If we are correct -- Your Honor may say we are

3 incorrect. If we're incorrect, we lose that issue and we still

4 have the other ones. If we are correct, then there is a

5 constitutional grant of power for them to do what they did. If

6 they were sloppy in the way they did it because they didn't

7 cite the right provision, that doesn't invalidate their law.


9 THE COURT: Okay. Mr. Figinski?

10 MR. FIGINSKI: Your Honor, I think we are at the

11 point where we have beaten a dead horse to death. And I think

12 what we need to do is to take a moment to sum up and tell you

13 what standards there are that you should apply to this case.

14 Now maybe I have misinterpreted where we are. And if Your

15 Honor has questions of our side, I would be delighted to try to

16 respond to them.

17 THE COURT: Okay. Well, let me hear from you on the

18 issue raised about the applicability of early voting only in

19 the general election.

20 MR. FIGINSKI: Applicability of early voting only in

21 the general election.

22 THE COURT: Not applying to the -- or the

23 statute -- I mean, there has been reference to, is it,

24 article --

25 MR. FIGINSKI: Article 1, Section 1, Your Honor?


gaw 108

1 THE COURT: -- Article 15, Section 7, applies --

2 MR. FIGINSKI: Article 15, Section 7, and Article

3 17, 1, 2, and 9 only apply to the general election.

4 THE COURT: Okay. Now, in looking at the plain

5 language -- and I know there has been some discussion of

6 several cases that supposedly say that Article 1, Section 1,

7 does not apply to primaries. But let's look back at Article

8 15, Section 7. Do you have any authority that says, or do you

9 have anything you want to say about the effect of this

10 limitation to -- well, let's see. All general elections shall

11 be held -- the date set by the Section 7 for the general

12 election is Tuesday.

13 MR. FIGINSKI: The general election has to be held

14 on Tuesday. And our submission with respect to the general

15 election, as I understand it, Mr. West has discussed it, as far

16 as the general election is concerned, Article 15, Section 7,

17 and Article 17, Sections 1, 2, and 9, relate only to general

18 elections. And they require that the election be held, as

19 Article 15, Section 7, says, on the Tuesday next after the

20 first Monday in November. All general elections shall be held.

21 Then, it does not apply, 15 and 17 do not apply, to

22 primaries. We can't make that argument. We don't make that

23 argument. There is in my view a substantial issue as to

24 whether Article 1, Section 1, applies to primaries. The State,

25 the defendants, have cited two cases 40 years old which say


gaw 109

1 that they don't apply to primaries. Three judges of the Court

2 of Appeals in Suessmann decided in 2005 say that Article 1,

3 Section 1, because it is all inclusive in its language to say

4 all elections, they say that this applies to primaries as --

5 they would argue it applies to primaries, as well as to

6 general.

7 And I don't want to go to the next level, if I have

8 to go there by anybody construing what I'm saying today, that I

9 have waived that argument as to primaries.

10 THE COURT: Okay. Well, maybe I should ask the

11 other side. What in the plain language of Article 1, Section

12 1, limits its applicability only to primaries?

13 MR. BERMAN: If Your Honor will give me one moment,

14 I will provide Your Honor with the specific answer. Bear with

15 me one moment, if you, Your Honor.

16 (Pause.)

17 Your Honor, straight answer to your question, there

18 is nothing in the language of Article 1, Section -- oh. Did

19 Your Honor ask about Article 1, Section 1, or --

20 THE COURT: Article 1, Section 1. What in the plain

21 language of Article 1, Section 1, says that it does or does not

22 apply to primaries? I mean, it does say all elections shall be

23 by ballot. It appears in its general language to apply to all

24 elections, as opposed -- it doesn't say all general elections.

25 It says all primary elections. And is it reasonable to


gaw 110

1 anticipate that certainly the framers would have understood

2 that there may be primaries in the future that would be

3 regulated by the legislature? But they didn't say all general,

4 they said all elections.

5 MR. BERMAN: Your Honor, the straight answer to Your

6 Honor's straight question is that there is nothing in the

7 express language of Article 1, Section 1 --

8 MR. FIGINSKI: You're looking for page 42.

9 MR. BERMAN: Yes. Thank you.

10 The answer to Your Honor's question is in the two

11 cases that Mr. Figinski referred to. In Hill versus Mayor of

12 Colmar Manor, 210 Md. at page 53, the Court of Appeals in 1956

13 said Article 1 doesn't restrict the legislature's powers as to

14 a primary. That's what the Court of Appeals said. So it's a

15 straight answer. It's not in the words.

16 Primaries didn't exist when that provision was put

17 into effect. We would submit the Court of Appeals' Hill

18 holding is binding on this Court, respectfully. And that the

19 dicta -- I'm sorry. The concurring and dissenting opinion is

20 in Suessmann that Mr. Figinski mentioned may very well be grist

21 for his argument, if this case goes up on appeal. But in this

22 court, Hill is the binding holding. It's not the express

23 language of Article 1. It's the Hill holding.

24 THE COURT: Okay. Anything else?

25 MR. FIGINSKI: We have -- I thought we were in the


gaw 111

1 question period, Your Honor. Do you have any questions? If

2 not, we need to -- I think I need a few minutes to discuss the

3 standards that you have to apply, unless you don't want to hear

4 that. I'll stop right now.

5 THE COURT: I'm happy to hear that.

6 MR. FIGINSKI: May I proceed? Well, I'll wait.

7 (Pause.)

8 MR. BERMAN: It's 210 Md. at page 53, Your Honor, in

9 the Hill case.

10 THE COURT: Let me quickly look at Hill.

11 (Pause.)

12 Okay. I will hear your closing.

13 MR. FIGINSKI: All right. Your Honor, I want to

14 begin perhaps by trying to deal with where Mr. Berman ended.

15 And where Mr. Berman ended was to portray early voting as

16 secure absentee ballot voting, as no excuse absentee ballot

17 voting. And I challenged the defendants to tell me where in

18 the two enactments there was anything referencing that. And

19 they cannot do it.

20 And they say, in response to that, that the

21 legislature has great power, they have all the power, and

22 they're not circumscribed. They can pass this bill, and they

23 can call it anything. Under the defendants' analysis, we could

24 have a bill enacted dealing with crabbing. And it could be

25 applied to oysters.


gaw 112

1 Unfortunately, they overlook another constitutional

2 amendment. The legislature does not have plenary power, Your

3 Honor. They have only that power which is given to them by the

4 Constitution. And the Constitution circumscribes them in

5 certain ways. We have argued that Article 3, Section 49, says

6 that they may enact laws dealing with elections not

7 inconsistent with the Constitution. But there is another

8 provision which their argument today has brought to the fore.

9 And that argument is one which has tripped other

10 efforts by the General Assembly four times since 1989. And

11 that's Article 3, Section 29. Article 3, Section 29, does

12 not -- we had no reason, absolutely no reason, on the face of

13 what was enacted over the governor's veto, to think that

14 Article 3, Section 29, was at issue here, because the only

15 thing mentioned in Article 3, Section 29, was early voting.

16 And we challenged early voting.

17 And now they come in here and tell us it's not early

18 voting, it's no excuse absentee voting. And it's not in the

19 bill. And this Constitution Section 29, Article 3, says that

20 every law enacted by the General Assembly shall embrace but one

21 subject and shall be described in its title. There is

22 nothing -- for them to come in here today after all these

23 months, after all this time, and to change the name of the game

24 in order to save what cannot be saved is unconstitutional.

25 But this -- we don't have to go there, Your Honor.


gaw 113

1 We can go to what we've argued: Article 1, Section 1; Article

2 15; and Article 17.

3 Now you have before you two motions. One is a

4 motion for summary judgment. And in that regard, Your Honor,

5 on July 17, when we filed our initial pleadings, we filed with

6 that pleading a motion for summary judgment. And that motion

7 very clearly said that there was no issue of material fact.

8 There remains to be no issue of material fact.

9 And we went on to tell you in the memorandum that

10 accompanied it that this case was controlled by Salisbury

11 Beauty Schools versus State Board. And we also noted both

12 Kelly versus Marylanders for Sports Sanity, Bane versus

13 Secretary of State, and Village Square versus Retail

14 Partnership, all were constitutional issues decided summarily.

15 Nowhere, nowhere, not one word, has been addressed by the State

16 in its voluminous pleadings to this case authority.

17 Salisbury Beauty Schools says some very relevant

18 things about summary judgments. You have to have a genuine

19 dispute of material fact. Disputes of some facts which are not

20 material are irrelevant. And the material fact here is that

21 the statutes were enacted under certain titles and are infirm

22 because they are inconsistent with the Constitution under

23 Article 1, Section 1, Article 15 and Article 17.

24 I am not going to stand here and reiterate that

25 which we already said. But as a formula for decision, Your


gaw 114

1 Honor needs to find only that there is no genuine dispute of

2 material fact. And everything that they have told you about

3 the summary judgment issue is that it is more convenient or it

4 is somehow in the public interest that an unconstitutional law

5 go into effect regardless of the fact that it's

6 unconstitutional. Now I know of no authority for that.

7 Likewise with respect to the injunctive relief, on

8 the day we filed the case on July 17, we submitted a memorandum

9 on the issue of a temporary restraining order. We stand by

10 that memo. We stand by that memo, Your Honor, because of

11 certain clear, absolutely clear, case law.

12 It is absolutely certain that in 281 Md. 548 certain

13 factor were set out to guide preliminary relief. As recently

14 as 2005, the Court of Special Appeals in a case called DMF

15 Leasing versus Budget Rent-A-Car clearly held that those

16 criteria are merely factors, they are not elements like a tort.

17 And DMF Leasing did another thing, Your Honor. It

18 gave us some insight as to what, not as to what, but the

19 difference between injunctive relief when a governmental

20 interest is at issue and when merely private litigants are

21 fighting. This is not a case, Your Honor, as a traditional

22 case, for preliminary relief. This is not a case where some

23 employee left employment and violated a covenant not to

24 compete. That's not what's before you.

25 In such a case, convenience, public interest,


gaw 115

1 irreparable harm and all those other things might very well be

2 at issue and are at issue. But when it comes to dealing with

3 cases that deal with government entities, Judge Davis has

4 explained to us that the Court of Appeals expressly adopted a

5 theory that when government interests are at stake, fewer than

6 all four factors apply. And the trial courts exercising their

7 traditional equity powers have broader latitude than when only

8 private interests are involved.

9 Under the Court of Appeals holdings, then when

10 government entities are involved, Courts have discretion to

11 disband with vigorous application of all four factors. And he

12 points to the Fogel versus H&T Restaurant case. And Fogel, the

13 Court said, "In litigation between government and private

14 parties or in cases where injunctive relief deals directly

15 impacts governmental interest," which is what this is, "the

16 Court is not bound by the strict requirements of traditional

17 equity developed in private litigation. We have also

18 acknowledged that courts of equity may, and frequently do, go

19 much farther both to give and withhold relief than they are

20 accustomed to do when only private interests are at stake."

21 And I submit to you, Your Honor, that that is

22 particularly true when a matter is raised as to the

23 constitutionality of an enactment.

24 If, just as Judge Karwacki said in the Schaeffer --

25 no, the doctrine. What's the doctrine? The judge has already


gaw 116

1 ruled on it.

2 MR. WEST: Laches.

3 MR. FIGINSKI: On the laches doctrine -- I'm getting

4 old, Your Honor. Sorry. On the laches doctrine, just as he

5 said in that, when something is intrinsically void, you look at

6 it in a different light. And what we are arguing here is that

7 it is intrinsically void.

8 Now, Your Honor, I do not stand here and suggest to

9 you that these issues are easy. And I do not suggest to you

10 that they are without some argument on each side. Mr. West has

11 told you that 15 and 17 hold. And I tried to argue what

12 Article 1, Section 1, holds. I have tried to express it both

13 in our pretrial hearing, a memorandum, or whatever the thing

14 was called, the thing we handed up today. But, Your Honor, I

15 am fading. I don't have much voice left. And I don't have

16 much energy left. But these bills should not have much life

17 left.

18 And they should not have much life left, Your Honor,

19 if for no other reason, if for no other reason, than what we

20 concluded our trial memorandum with, words uttered by the Court

21 of Appeals just days ago, on July 28. And it's a discussion

22 quoting Chief Judge Chase in an 1802 case about what is a

23 judicial obligation when a piece of legislation is challenged.

24 Quoting from Judge Chase, and contrary to what the State has

25 argued, Judge Chase wrote, "The legislature being the creature


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1 of the Constitution" -- being the creature of the Constitution

2 is not being omnipotent. This is not a parliamentary

3 government. This is a constitutional democracy.

4 Back to Judge Chase, "The legislature being the

5 creature of the Constitution and acting within a circumscribed

6 sphere not inconsistent with the Constitution is not omnipotent

7 and cannot rightfully exercise any power but that which is

8 derived from that instrument. It is the office and province of

9 the Court to decide all questions of law which are judicially

10 brought before them, according to the established mode of

11 proceeding, and to determine whether an act of the legislature,

12 which assumes the appearance of the law, is clothed with the

13 garb of authority, is made pursuant to the power vested by the

14 Constitution and the legislature. If it is not the result of

15 emanation of authority derived from the Constitution, it is not

16 law and cannot influence the judgment of the Court in the

17 decision of the question before them."

18 Your Honor, we closed with that in the pretrial

19 memorandum. I close with that now. I would be delighted to

20 answer any questions you have. I hope I haven't intruded upon

21 your patience too much today, Your Honor. But this, I ask you

22 to grant the relief that has been prayed, a summary judgment

23 for the plaintiffs, at least as to the general election.

24 In saying that, I am not waiving Article 1, Section

25 1. I am simply recognizing that it is, among all the issues


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1 presented, the most contentions that you have to decide.

2 Thank you.


4 MR. BERMAN: With the Court's permission,

5 Mr. Figinski opened up by saying that the legislature does not

6 have plenary power. We cited half a dozen cases at pages 18 to

7 19 of our memo. First Continental, a 1962 decision, 229 Md.

8 302, "The powers of the Maryland legislature are plenary except

9 as restrained or confined by the federal or state

10 constitutions."

11 The plaintiffs have brought suit based on primary

12 elections. They concede that their argument is a good faith

13 effort to modify the law. We appreciate the fact that they are

14 candid about that. They can't succeed on the primary

15 elections. The Constitution simply does not protect them.

16 Mr. Figinski has argued, I would say forcefully,

17 that Article 3, Section 28, the titling portion of the

18 Constitution, somehow defeats my argument that Article 1,

19 Section 3, of the absentee voting portion provides power.

20 Nothing in Article 3, Section 28, prescribes magic words that

21 have to be in the title of the bill. The bill is described.

22 It's properly described. It's valid. And it's covered by

23 Article 1, Section 3, for all the reasons we have argued and

24 I'm going to repeat.

25 Respectfully, the Court doesn't have to "buy" my


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1 Article 1, Section 3, argument. I can lose on that, and I

2 still can win the case. Here's how: The bill was enacted.

3 Under plenary power, they have to show a constitutional

4 provision that prohibits that exercise.

5 We say Article 1, Section 3, expressly authorizes

6 that exercise. If we're right, we win. If we're wrong, they

7 still have to show a prohibition. We've been through Article

8 1, Section 1, Article 15, Article 17. I'm not going to repeat

9 what we've covered since early this morning. For all the

10 reasons we've stated, they're not a prohibition on this bill.

11 And if there is no prohibition, the bill is constitutional, and

12 it is valid.

13 Again, we suggest or request or submit that the

14 Court need hold only that an election is more than the casting

15 of some ballots by some voters. If the Court agrees with that

16 proposition, their whole case falls.

17 They never answered my tsunami argument. The reason

18 is because they can't. If four days of voting and a tsunami

19 that postpones the election, is that an election? They must

20 say yes to win the case. But if they say yes, it demonstrates

21 how tenuous their argument is. Because, in Mr. West's words,

22 no common person would think that four days of early voting by

23 15 percent of the voters with the rest of the election

24 postponed due to a tsunami is an election. They cannot

25 logically prevail.


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1 Jackson, again, an election is not free if voters

2 cannot cast ballots. Early voting ensures that people who are

3 busy, people who are poor, people who have daycare, people who

4 have children can cast ballots. That's what this is all about.

5 Now, on the summary judgment argument, plaintiffs

6 spent a good deal of their closing argument on summary

7 judgment. So I would like to address it a little bit.

8 One thing that is wholly missing, wholly missing,

9 from their argument is what is the standard for entry of a

10 final injunction. We looked. We didn't find any Maryland case

11 law on what the standard is for entry of a final injunction.

12 So we had to go to the Supreme Court of the United States in

13 the case of E-Bay, Inc., versus Mercexchanage, M-e-r-c-e-x-c-h-

14 a-n-g-e, L.L.C. It was decided May 15, 2006. It is in advance

15 sheets. There is no U.S. citation of which I'm aware of.

16 In the slip opinion at page two, the Supreme Court

17 said, "According to well-established principles of equity, a

18 plaintiff seeking a permanent injunction must satisfy a four

19 factor test before a Court may grant such relief." And they

20 went on to say the plaintiff has to demonstrate, and I'm not

21 quoting exactly, irreparable injury, inadequate remedy at law,

22 balance of hardships, and public interest.

23 The Supreme Court went on to say that the decision

24 to grant or deny permanent injunctive relief is an act of

25 equitable discretion. And the Fogel case and the DMF case give


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1 Your Honor wide latitude. There is no doubt about it, wide

2 latitude to grant or to withhold equitable relief. But

3 noticeably absent from their motion for summary judgment,

4 noticeably absent from their entire closing argument, is the

5 standard for summary judgment on a permanent injunction. The

6 plaintiffs argue only likelihood of success or success on the

7 merits. We have beaten that one to death. I'm not going to

8 repeat what we've talked about.

9 We've argued there is no injury to these plaintiffs.

10 They can't assert third party rights. They can't take the

11 rights away from other voters. We've argued balance of

12 inconvenience. We've argued public interest. We've argued the

13 facts. We've proffered the facts. All that is absent from

14 their summary judgment argument.

15 We point out, and the Court may deny, but we have a

16 motion for extension of time to respond to summary judgment.

17 We cite the Basilico case that says the presence of unanswered

18 interrogatories is a factor to consider. We have a 2-501(d)

19 affidavit. None of these issues were addressed by the

20 plaintiff.

21 At bottom, Your Honor -- well, before I go to at

22 bottom, there are a couple of what I would call almost

23 housekeeping issues. We pointed out and they have conceded, I

24 think pretty much conceded, if not conceded, subject to arguing

25 that the Court of Appeals should change its holdings in


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1 accordance with the Suessmann dissents, that they can't win on

2 the primary election, that the Constitution doesn't prohibit

3 early voting on the primary. We've argued that under Maryland

4 statutes, primaries should be conducted in the same way, I'm

5 sorry, general elections should be conducted in the same way as

6 primaries. And we think that is a forceful argument.

7 We also have pointed out that there is an extremely

8 over-broad request for relief here, and that the plaintiffs

9 seek to enjoin implementation of the entire early voting

10 statute. And there are a lot of provisions of the early voting

11 statute that have nothing to do with the issues that they're

12 talking about. The early voting statute provides by decisions

13 by a super majority of the board of elections. Are they

14 seriously contending that should be enjoined? There are a host

15 of other provisions. And they haven't addressed, they have

16 made no attempt to narrow their request for relief to the

17 pertinent issues.

18 They say an election is held when the voting is

19 going on. Not one Court in 200 years of American history has

20 agreed with them, not one. The dictionaries have multiple

21 definitions. There may be some that support them. There are

22 certainly some that support us. The cases support us. The

23 cases interpreting virtually identical statutory provisions

24 support us.

25 We would suggest that at bottom on this decision, at


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1 bottom, we are here on August 8. It would be disruptive to the

2 process to interfere. We accept the Court's ruling on laches.

3 However, for purposes of injunctive relief, the plaintiffs have

4 waited to long. Reynolds versus Simms and its progeny stand

5 for the proposition that the Court should consider the impact

6 of injunctive relief on the imminent election, the ongoing

7 processes, the state election machinery.

8 We have submitted evidence on the record, and it is

9 unopposed, that injunctive relief would interfere with the

10 electoral process and interfere with voters' rights and

11 interfere with the electorate and interfere with employers.

12 And that is unopposed. We would submit that that is one of the

13 weightiest factors that the Court should consider in balancing

14 the various factors for final injunctive relief.

15 We, of course, have argued that the Court should not

16 reach final injunctive relief. The Court has ruled otherwise.

17 We accept the Court's ruling. But we think that it is

18 critically important to consider that factor.

19 To sort of wrap up on likelihood of success, we

20 think there is an express grant. We certainly have argued that

21 there is no express prohibition on the exercise of the plenary

22 power that has been discussed here. That is only one of the

23 multiple prongs that the plaintiffs must satisfy to get

24 permanent injunctive relief. They have to show irreparable

25 injury. They haven't.


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1 These plaintiffs will vote how and when they want to

2 vote under the early voting laws. The balance of convenience

3 tips markedly in the State's favor given the imminency of the

4 election, given the fact that the train left the station, and

5 that it's too late to turn the ship around.

6 And the public interest is enunciated in Jackson, an

7 election is not free if voters cannot cast ballots. The risk

8 of an injunction is that it will interfere, in part because of

9 the plaintiffs' delay and in part because of the complexities

10 of modern society, it will interfere with the rights of people

11 to exercise their franchise as they choose to do when those

12 people have no notice of the suit, are not part of the suit.

13 Your Honor, we would respectfully request that the

14 Court deny the request for injunctive relief.


16 MR. FIGINSKI: Your Honor, briefly, if I may.

17 THE COURT: I think you have the last word.

18 MR. FIGINSKI: Your Honor, it has been said that we

19 have made too broad an attack. On July 17, we filed our

20 verified complaint. And we asked for a decree that declares

21 Chapter 5 and portions of Chapter 61, insofar as they purport

22 to allow early voting, as well as any other implementing

23 legislation, are unconstitutional.

24 We don't ask to deal with Ms. Lamone's plenary

25 powers that may have been attached to one of these provisions.


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1 We ask for specific relief. And we ask for an injunction

2 enjoining the State, Ms. Lamone, and the State Board, from

3 implementing early voting until such time, implementing early

4 voting until such time, if ever, as the Constitution of

5 Maryland is amended to allow the General Assembly to provide

6 for a general election to be held, other than on the Tuesday

7 after the first Monday in the month of November, and to allow a

8 voter who does not avail himself or herself of the

9 constitutionally sanctioned right to vote by absentee ballot to

10 vote in a location away from the ward or election district in

11 which the voter resides.

12 We have not fired a bunderbust at these statutes.

13 We have filed and ask for specific relief. And that specific

14 relief, I believe, Your Honor, has been made clear to you. If

15 you have any questions, I will be delighted to try to answer

16 them. Otherwise, thank you for your patience.

17 THE COURT: Okay. No, I don't have any questions.

18 I am going to consider everything that I have heard, the

19 arguments. And I am want to re-read the cases. And hopefully

20 I can render a decision in the next day or so. I'm going to

21 try to do that. Will you all be available in case I need you

22 back in the next day or so?

23 MR. FIGINSKI: Your Honor's wish will be our

24 command.



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1 MR. FIGINSKI: And I believe if anyone wants to

2 interfere with that, we'll tell them that you asked for us.

3 THE COURT: All right. I will try not --

4 MR. BERMAN: Your Honor, I am scheduled to be off

5 tomorrow afternoon, Thursday, and Friday. If possible, if

6 we're needed, I would prefer, if it's possible, in the morning

7 of tomorrow, because I am scheduled to be away.

8 THE COURT: Okay.

9 MR. BERMAN: Or not to be away, but to be off on

10 personal time, leave time.

11 THE COURT: Well, I can't promise you that I will

12 have this done tomorrow. I am still not 100 percent sure

13 whether I am just going to write this or whether or not I am

14 going to bring you back and put it on the record. It depends

15 on where I am. And I want to -- I can tell you what I want to

16 do, and that's the quickest and most efficient, because this

17 needs to get resolved so that the train can continue going

18 wherever it is going.

19 All right. Thank you all for your cooperation with

20 each other.

21 MR. FIGINSKI: Thank you, Your Honor, for your time.

22 MR. BERMAN: Thank you.


24 (Whereupon, the hearing was concluded.)

25


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C E R T I F I C A T E

CompuScribe hereby certifies that the attached pages

represent an accurate transcript of the duplicated electronic

sound recording of the proceedings in the Circuit Court for

Anne Arundel County in the matter of:

Case No. C-2006-115807

MARIROSE CAPOZZI, et al.

v.

STATE OF MARYLAND, et al.

By:

_____________________________

Gail A. Williams, Transcriber


























Documents

Record Extract